By Jiang Junlu  Wang Shiyu King&Wood Mallesons’ Labor Goup

jiang_junluChen Yang is about  20 years old from Northeast China, and he had worked at Shanxi Star Coal Mine for five years for underground hauling since February 2008. In June 2013, Chen got a job in Tiancheng Company in Shanghai doing a similar hauling work, which however did not expose to dust. Tiancheng company did not conduct pre-employment health check at the time of employment. In September 2013, he was transferred by Tiancheng to a stucco decorative job which exposed him to a small amount of dust. In November 2013, he felt sick with  tight chest and coughed heavily, and was diagnosed as “third stage of CWP (coal worker’s pneumoconiosis)” with “lung abnormalities and a large shadow in the left lung”.

The certificate of diagnosis of occupational diseases issued by the Shanghai Occupational Disease Prevention Hospital stated that Chen Yang’s employer was Shanghai Tiancheng Company. Meanwhile, the record on his occupational exposure history showed that Star Coal Mine was closed.

Chen asked Tiancheng Company to apply on his behalf to the local Human Resources and Social Security Bureau (“HRSSB“) for work injury recognition. Tiancheng Company refused the request as  it considered that Chen Yang’s illness was caused by his previous work in the coal mine. However, Chen Yang believed that he had been exposed to dust while working for Tiancheng Company and this caused the disease, so he applied himself to the HRSSB for work-injury recognition.  After investigation, HRSSB held that Chen Yang’s illness was caused by occupational hazards and verified it as work-injury.

Tiancheng Company insisted that Chen Yang’s illness could not possibly be caused by his work for them, because he was exposed to dust working for Tiancheng for only two months. On the other hand he had worked in the coal mine for many years, thus Tiancheng Company should not be liable for his occupational disease. To evidence its strict control of its working environment, Tiancheng engaged an agency to check the environment of Chen’s workshop and it submitted an occupational hazards monitoring report, which indicated that all tested items of the workshop meet required qualification standards.

HRSSB held that, although Chen’s working experience suggested that his occupational disease might be closely related with Star Coal Mine, Tiancheng failed to arrange a preemployment occupational health check for Chen Yang before he was exposed to occupational hazards with it. Although the occupational hazards monitoring report showed that Chen Yang’s Tiancheng work environment was safe, it was issued after HRSSB’s investigation and thus could not be used as supporting evidence for Tiancheng’s argument. In addition, from the perspective of protecting employees, if Star Coal Mine was responsible for the work-injury liability, then Chen Yang could not actually get any compensation from it. When Tiancheng failed to arrange a preemployment health check for an employee with work injury insurance, Tiancheng had assumed the work injury liability.

In order to mitigate an employer’s risk of recruiting employees with a preexisting sickness, it is advisable for an employer to adopt the following approaches.

1. Fully investigate the employee’s history of illness and work injuries during recruiting. Prior to commencement of employment, the employer may require candidates to provide his/her basic information, family, work experience, physical condition (for example, whether he/she has had a work-injury or whether he/she has an occupational taboo) and fully explain to candidates the requirements of the position and its impact on health .

2. Arrange a health check prior to commencement of employment or transfer to a new position. If the employer’s working environment has occupational health hazards or the position has special physical requirements, a routine health check is not enough. Instead, a specific examination should be done based on the job requirements. For example, generally an employee with hypertension can work, but hypertension is a contraindication for a highly responsible position.
If an employee is transferred to a new job, the employer should consider whether  to conduct a further health check based on the new job requirements.

3. Establish an occupational health record for employees after commencement of employment. The occupational health record can record each of the individual’s occupational health checks, any treatment, medical history and the history of exposure to occupational hazards and so on. Occupational health records should be kept and managed by an appointed person. Also, employers are obligated to keep such medical information confidential and to protect the privacy right of employees.

(This article was originally written in Chinese, and the English version is a translation.)

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