63

MEDICAL

EXAMINATIONS

REQUIRED IN HONG KONG

LABOUR LAW
Dr. Thomas K. W. Ng
Senior Lectuier,
Department of Community
University of Hong Kong.

Medicine,

INTRODUCTION
A number of medical examinations are now required in the labour law
of Hong Kong. The objectives of this paper are to describe the statutory
medical examinations required, to discuss the reason for making these
examinations statutory and to review the situation in this aspect of occupational health practice in Hong Kong.
Broadly, labour law in Hong Kong covers four main areas: (1) health
safety and welfare, (2) conditions of employment, (3) workmens compensation and (4) labour relations. Medical examinations are required in all these
areas except the last. The principal legislation for health safety and welfare
of the workers is the Factories and Industrial Undertakings Ordinance.
There are a number of regulations made under this ordinance, each covering
a particular aspect of industrial practice such as woodworking machinery,
confined spaces, electrolytic chromium process, etc. Radiation workers are
covered by the Radiation Ordinance. The Employment Ordinance governs
the conditions of employment locally including,
inter alia, sickness allowance and maternity protection. The Workmens Compensation Ordinance
makes it the employers liability to compensate workers with loss of earning
capacity because of occupational injuries or certain occupational diseases.
UNDERGROUND WORKERS
Medical examinations for underground workers are required in the
Factories and Industrial Undertakings Regulations. The law states that no
person shall be permitted to work underground (interpreted technically as
working in mines, quarries or industrial undertakings involving tunnelling
operations) unless he is medically examined within the month preceding the
date he commences so to work. The law forbids categorically the employment of any adult female worker and young person under 18 years old in
underground work.

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The medical examination

including a chest x-ray examination
can be
carried out by any medical practitioner
engaged by the employer.
The
examining doctor has to fill in a statutory form in duplicate and send one
copy to the Senior Industrial Health Officer. Upon receiving the medical
report, the latter will in turn issue a statutory certificate to the employer
stating whether that particular worker is fit or unfit to work.
This is all that is required for workers over 21 years old. Moreover,
the law empowers the Commissioner for Labour to grant them exemption
from such a medical examination where the underground work is unlikely to
take more than six months to complete. For those who are between 18 and
21 years old, the law requires that the medical examination
should be
repeated annually. Thus, for the former, it is only a pre-employment
medical
examination,
whilst for the latter, it is both pre-employment
and periodic.
The working environment
underground is peculiarly beset with hazards
which are unpredictable
and therefore, do not lend themselves readily to
effective control measures. Moreover, such hazards characteristically
occur
under conditions which make rescue operations difficult.
A good account
of the profile of work in mines and tunnels is given in Mayers book, Occupational Health, Hazards of the Work Environment (1). Medical examination
for selection of the very fit workers to work underground is thus well justified. The medical examination,
therefore, seeks to exclude workers needing
constant medication,
having poor vision, as well as with difficulty
or
dyspnoea on walking or climbing.
In a sense, a pre-employment
medical examination
under such a circumstance is for the benefit of both the employers and the workers. It
ensures that the employers engage only fit workers to work. It also reassures
the workers that they are fit to work in such a hazardous environment.
Unfortunately,
the law stops at this stage and does not demand periodic
medical examination
to evaluate the health of the workers. This is the more
important aspect, looking from the angle of health protection.
It is only for those workers between 18 and 21 years old that the law
requires annual medical examination.
It is difficult to understand the logic
behind this requirement.
If it is for the evaluation of the health of the
workers, then the statutory medical examination should not stop at the age
of 21. If it has as an objective the special protection of these comparatively young workers, then the statutory medical examination
appears to
produce the opposite effect by screening out the unfit underground workers
when they reach 21. Periodic medical examination should be carried out at
regular intervals of time. Not only is it done for individual interest, but also
the group evaluation will indicate success or failure in the environmental
control measures.

MEDICAL

EXAMINATIONS

REQUIRED

IN HONG KONG LABOUR

LAW

COMPRESSED
AIR WORKERS
These workers work in an entirely artificial environment as compressed
air is being used to keep away the water so as to ensure a dry site to work.
A special set of regulations, the Factories and Industrial Undertakings (Work
in Compressed Air) Regulations, has recently been made to govern the
particular
problems arising out of this type of work. All compressed air
workers are required by law to have pre-employment
and periodic medical
examinations.
There are in fact two schemes of medical examination
for compressed
air workers and not one (2). With more understanding
of decompression
sickness, compressed air workers are now divided into two categories:those who work at pressures less than 14 lb. per sq. in and those who work
at pressures equal to or greater than 14 lb. per sq. in. The former is believed
to be unlikely to suffer from aseptic necrosis of bone, a condition which is
the chief concern at present, and so the medical examination required is not
so stringent.
The law requires that the employers should appoint medical practitioners to carry out the statutory medical examinations
and the names and
addresses of these appointed medical practitioners
should be notified to the
Commissioner for Labour. The medical records should be kept in a statutory
form. To serve as evidence of fitness to work, the appointed medical practitioner signs the compressed air health register of each individual worker
after a satisfactory medical examination.
The pre-employment
medical examination
for workers who will work
in pressures less than 14 lb. per sq. in. consists of a physical examination to
rule out certain contraindications
for working in compressed air such as gross
obesity, epilepsy, hernia, etc. The periodic medical examinations required of
these workers are once every three months.
The pre-employment
medical examination
for workers who will work
in pressures equal to or greater than 14 lb. per sq. in requires a radiological
examination
of the major joints in addition.
Thereafter,
the physical
examination
is repeated once every four weeks and the radiological examination, once every six months.
Moreover, any worker suffering from an illness or injury necessitating
absence from work for more than three days must undergo another medical
examination
for fitness before returning to work in compressed air.
This scheme of statutory
medical examinations
is designed for the
protection
of the workers by providing
both pre-employment
medical
examinations
and periodic medical examinations
at regular intervals. The
only flaw is that it has no built-in system to ensure continuity
of the medical
records. This may render difficulties
in the interpretation
of certain findings
on medical examination
in the absence of previous records and make it

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impossible to evaluate the adequacy of the control measures such as the

decompression tables adopted without centralisation of the medical records
and radiological films, But this does not mean that all medical practitioners
who practise in this field and show concern in this aspect should not get
together to form a local decompression sickness research panel.
RADIATION WORKERS
With the enactment of the Radiation Ordinance in 1957, protection of
the radiation workers became the responsibility of the Radiation Board
instead of the Labour Department. Medical examinations are required of
workers handling any unsealed radiocative substance or being in close
proximity to any irradiating apparatus in operation.
The law requires the Radiation Board to appoint panels to advise it
upon matters affecting or concerning the state of health of radiation
workers. For the former, the Board has appointed a licensing panel to advise
on the approval of each application for licence, and as to the latter, the
Board has consitituted a medical panel to examine the radiation workers
routinely. The Senior Industrial Health Officer is the chairman of the
medical panel, with a Government Pathologist as a panel member. It is thus
an exclusive practice.
For every radiation worker, a pre-employment medical examination is
required. This includes a physical examination as well as a blood examination. There is no statutory medical examination form. The law requires
that the Board should inform the employer by means of a certificate
whether that particular employee is fit or unfit to do radiation work. The
same examination and procedure are repeated every fourteen months. All
these examinations are free of charge.
Since the government takes up the responsibility to examine the radiation workers, the number of medical examinations done each year are
published in the Annual Reports of the Medical and Health Department
recently (Table 1) although the practice has been established for nearly 20
years now. The number of radiation workers examined in 1974 was almost
double that of the previous years, because many persons were employed in
security checkup service, using irradiating apparatus, especially in the
airport.
This is a good scheme of statutory medical examination in that it
calls for pre-employment medical examination as well as periodic medical
examinations at regular intervals. Moreover, it calls for centralisation of the
medical records. It appears that not a single case of pathological manifestations due to radium or other radioactive substances or X-rays (the
exact legal definition for radiation sickness in Hong Kong) has been spotted

MEDICAL

EXAMINATIONS

REQUIRED

IN HONG

TABLE

KONG

LABOUR

LAW

NUMBER OF RADIATION WORKERS

EXAMINED EACH YEAR, 1971-74

YEAR

NUMBER

OF RADIATION

WORKERS

1971

239

1972
1973

248
294

1974

522

(Source:

Annual

Reports

of the Hong Kong

Medical

and Health

EXAMINEC I

Departmenti

through this scheme of statutory medical examination.

This does not mean
that the scheme itself has no value. It only indicates that it is now time to
review the scheme, especially on the validity of the medical examination
carried out in the light of current knowledge on radiation protection.

SICKNESS ALLOWANCE
From 1961 to 1973, sickness allowance was covered under the Industrial Employment
(Holidays with Pay and Sickness Allowance)
Ordinance,
applicable
to workers employed
in industrial
undertakings
only. From
1973 onwards, it is covered under the Employment Ordinance, applicable to
all manual workers and all non manual workers earning not more than
$2,000 a month.
The law requires an employer to pay sickness allowance to his employee who has worked continuously
for him for a period of three months
at the rate of one paid sickness day for each completed month of employment, cumulative up to a maximum of 24 days. The sickness allowance per
day is equivalent to half the normal pay. Moreover, sickness allowance is
not payable unless the sick leave required is not less than four days.
One of the requirements
for paying sickness allowance is that the
sick leave must be certified by the appropriate authority.
Thisdepends on
whether the employer is operating a recognised scheme of medical treatment or not. Recognition
is made by the Director of Medical and Health
Services in the Government Gazette and the two statutory conditions for
recognition
are that the scheme must be operated without expense to the
employees and by a medical practitioner
with such medical treatment as an
out-patient as the Director considers reasonable.
lt the employer operates such a scheme, sick leave for the purpose
of sickness allowance can only be granted by the medical practitioner

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employed or in case of hospital patient, by a hospital doctor attending that

particular
case. Any medical practitioner
can certify
sick leave if the
employer is not operating a recognised scheme of medical treatment.
We see here that the law is working towards a rudimentary
occupational health service by encouraging
employers to operate recognised
schemes of medical treatment, Unfortunately,
the sickness allowance under
statutory
provision
is so trivial that it produces no incentive
for the
employers to run their own medical schemes whole-heartedly.
No statistics
or reporting on sickness allowance can be found in the Annual Reports of
the Labour Department. This aspect of social security can be considered as a
failure, compared with workmens
compensation
enforced by the same
department.

MATERNITY

PROTECTION

This was introduced

in 1970 to the Employment
Ordinance. Protection is here used in the sense of protection
of employment
rather than
protection of health. The law applies only to those female employees who
have been employed by the same employers under a continuous
contract
for a period of not less than 26 weeks.
The law grants maternity leave beginning four weeks before the expected date of confinement
and ending six weeks after the actual date of confinement, though it also allows an extension of not more than four weeks
on the grounds of illness or disability arising out of the pregnancy or confinement. The maternity
leave is on a no-pay basis unless the contract of
employment
stipulated
otherwise. Any pregnant female worker intending
to get protection must notify her employer properly. This must be done
any time within the period of eight weeks before the expected date of confinement for commencing maternity leave on a specified date.
If the employer requires, the worker must produce a medical certificate. To certify pregnancy and the expected date of confinement,
the
certificate can be signed by either a registered medical practitioner
or a
registered midwife.
To certify illness or disability
complicating
the pregnancy or confinement,
only a registered medical practitioner is authorised
to sign.
As mentioned
earlier, the objective of this legislation is to provide
security of employment
for female workers on maternity leave. The medical
examination
required is to certify pregnancy and any resulting complication.
There is no law requiring medical examination
for the sake of protecting
the health of pregnant
workers or banning them from doing certain
hazardous work.

MEDICAL

EXAMINATIONS

REQUIRED

IN

HONG

KONG

LABOUR

LAW

WORKMENS COMPENSATION
One would expect that the statutory

medical examinations required in

the Workmens
Compensation
Ordinance are for the assessment of the
disabilities of the claimants, but this is not true. The law does not specifically ask for such a medical examination.
Instead, it asks for medical examinations for two other reasons.
The first one is that the employer may offer to have the injured worker
examined, within
seven days upon being informed of the accident, free
of charge by a named medical practitioner.
The law obliges the injured
worker to attend the medical examination
lest his right to compensation
would be suspended. But the injured worker is entitled to have his own
medical practitioner
present at such examination
at his own expense, Moreover, if he is not fit to attend the medical examination
as arranged by his
employer,
he can notify his employer to this effect, supported by the
opinion Of any medical practitioner.
In that case, the medical practitioner
named by the employer will fix a reasonable time and place for the medical
examination and inform the injured worker accordingly.
The objective of such a medical examination
is thus to ascertain that
the injured worker has some degree of incapacity, at least temporarily,
as
a result of the accident. As the Workmens Compensation Ordinance seeks
to provide compensation for loss of earning capacity, the exact incapacity,
whether temporary or permanent, is not to be assessed by just considering
medical findings alone. That is why the law does not make medical examinations compulsory for the determination
of incapacity but leaves it to the
Commissioner for Labour to see that the agreement reached by the injured
worker and his employer is a fair one.
There are, therefore, informal medical boards set up by the Industrial
Health Unit to assess the extent of disabilities of the claimants on medical
grounds and supply this information
to the Workmens Compensation
Unit of the Labour Department. Officers in the latter unit will make use of
this information
and other evidence to grant approval of the agreements in
the name of the Commissioner for Labour.
The second cause for medical examination
under the Workmens
Compensation Ordinance is for workers to be employed in certain prescribed
trades, industries and processes. The law takes cognisance of the fact that the
trades, industries and processes prescribed after each occupational
disease
are providing a high risk to the workers and provides the presumption that
the particular occupational disease suffered by the worker in any prescribed
trade, industry or process is due to the nature of the employment unless the
contrary
is proved. This helps the workers in establishing their claims.
As the workers are protected, the law also allows the employers of the
prescribed trades, industries and processes to screen their workers before

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employment.
This is optional. If the employer wants it, he has to bear the
cost of the medical examination,
whilst if the worker refuses to undergo
such a medical examination,
his right to later compensation for an occupational disease is forfeited, There are 21 items of compensable occupational
diseases under the Workmens Compensation
Ordinance
(Table 2) each
TABLE

LIST OF OCCUPATIONAL
DISASES UNDER THE HONG
WORKMENS
COMPENSATION
ORDINANCE

ITEM

DESCRIPTION

Poisoning

OF OCCUPATIONAL

Poisoning

by manganese

Poisoning

by phosphorus

Poisoning

by arsenic

Poisoning

by mercury

Poisoning
Poisoning

by carbon bisulph ide

by benzene or a homologue

DISEASE

by lead

3
4

KONG

of benzene

Poisoning by nitro-derivative
or amido-derivative
of benzene
or a homologue of benzene
Poisoning by dinitrophenol
or a homologue of dinitrophenol

10
11

Poisoning
Poisoning

by cadmium
by tricresyl phosphate

12

Poisoning
series

by halogen derivatives

13

Poisoning

by nitrous

14

Anthrax
Primary

15

of hydrocarbons

of aliphatic

fumes

epitheliomatous

cancer of the skin

16

Ulceration

17

Chrome

18

Inflammation
or ulceration
of the skin produced by dust
liquid or vapour (including the condition known as chloracne
but excluding chrome ulceration)

19

Heat cataract
Decompression

20
21

of the cornea1 surface of the eye

ulceration

sickness

Pathological
manifestation
due to radium
active substances or X-rays

(Source: Hong Kong Workmens Compensation

(N.B.: For the prescribed

or other

radio-

Ordinance (Cap. 282). 1969 Revised Edition)

trades, industries and processes, please refer to the Ordinance

itself.)

MEDICAL

EXAMINATIONS

REQUlRED

IN

HONG

KONG

LABOUR

LAW

having its own list of prescribed trades, industries or processes,

Like occupational
injuries, no statutory medical examinations
at-e required for the assessment of disabilities due to occupational diseases. The
same assumption applies here as the compensation is for the loss of earning
capacity, medical assessment is only one of the factors but not the sole
factor for determining the issue,

FURTHER

DISCUSSION

A general review of the medical examinations

required in the Hong
Kong labour law has been made. All the schemes are different. Pre-employment medical examinations for workers to be employed in prescribed trades,
industries and processes are optional. The medical examinations required to
check claimants for compensation because of occupational
injuries are presumably optional also. To certify leave for sickness allowance and maternity
protection,
the law requires that only the appropriate authority can sign but
no statutory
forms are required. Medical examinations
for underground
workers are to a large extent compulsory and a statutory form has been
prescribed for this purpose. Medical examinations
for compressed air
workers are definitely
compulsory
and statutory
forms are required for
record as well as certification
purposes. Medical examinations for radiation
workers can only be done by panel doctors appointed by the Radiation
Board and though no statutory form is imposed, all the medical examination
records are centralised.
The objectives for doing these statutory
medical examinations
also
vary. The medical examinations
for radiation workers and compressed air
workers are for the protection of the health of the workers because they
require both pre-employment
and periodic medical examinations.
The
medical examinations
for underground
workers are of doubtful
value in
health protection,
because they are primarily
pre-employment
medical
examinations that serve best to screen out the unfit workers.
Medical examinations for sickness allowance and maternity protection
are for medico-legal purposes only. The former lacks the element Of occupational rehabilitation
and the latter, health protection of a vulnerable group.
The medical examinations
required of the claimants for workmens compensation
are of doubtful value by any criteria. The may help to bring into
light
that the injured
workers are not receiving proper medical attention
during
such medical examinations
if done. If SO, the law leaves the option
to the employers
either to offer free treatment to the injured workers or
to bear the consequence of having the injured workers without
proper
medical care.
The pre-employment
medical examinations for workers to be employed
in certain prescribed trades, industries and processes serve no important
purpose at the moment, being optional in nature. If these medical examina-

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tions are made compulsory and also periodic at regular intervals, then they
will provide good health protection of the workers. The objective of occupational health practice is to detect early deviation from health by environmental factors and not to wait for full grown diseases for workmens compensation. The existing labour law has a gap in this aspect.
Another gap in the labour law so far as medical examinations
are
concerned is our lists of occupational diseases do not reflect all the occupational health hazards in Hong Kong. Silicosis is a good example. Incidentally, we have the same lists of notifiable occupational diseases and compensable occupational diseases in Hong Kong. What we need to do is to examine
these lists periodically,
adding in or deleting items as the case may be.
Perhaps, the Workmens Compensation
Ordinance would be a wrong place
to ask for routine medical examinations,
but the special regulations under
the Factories and Industrial Undertakings Ordinance are certainly the right
places to do so.
The question is what scheme we are going to adopt. Personally,
I
tend to favour a scheme similar to that for the radiation workers with
centralisation
of the records to provide for group evaluation and research
into problems of occupational health. Such a scheme should not be free as
the existing practice for radiation workers but self-supporting,
and this will
provide the inroad for the full occupational health service as envisaged by
the Medical Development Advisory Committee in 1973 (3).
REFERENCES:
(1) Mayers, M.R., Occupational
Health Hazards of the Work Environment,
Williams & Wilkins, Baltimore, 1969.
(2) Ng, T. W. W., An Introduction
to the Hong Kong Factories and Industrial Undertakings
(Work in Compressed Air) Regulations, Bulletin of
Hong Kong Medical Association, Hong Kong, 1975.
(3) Report of the Medical Development Advisory Committee 1973,
Government Printer, Hong Kong 1973.

LABOUR LAW DISCUSSED:

(1)

(2)

(3)
(4)

The Factories and Industrial

Undertakings
Ordinance (Cap. 59)(a) The Factories and Industrial Undertakings Regulations
(b) The Factories and Industrial Undertakings
(Work in Compressed
Air) Regulations
The Radiation Ordinance (Cap. 303) (a) The Radiation (Control of Irradiating Apparatus) Regulations
(b) The Radiation (Control of Radioactive Substances) Regulations
The Employment Ordinance (Cap. 57)
The Workmens Compensation Ordinance (Cap. 282)