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Revolution of Chinese Occupational Health Legal Protection Mechanisms Based on t

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Abstract. Occupational Health Act hermeneutics development affects its law policy design direction. Therefore, the law of Chinese worker occupational health protection needs to be wary of some cognitive bias and its potential directional bias. It is imperative to abandon the “unitary view” with which people take occupational health protection equivalent to the skeletal muscle and other health protection; and “big occupational safety concept” which focuses on occupational safety but ignore occupational health and “occupational disease-oriented view” which narrows the occupational health governance as a statutory occupational disease prevention, reducing the risk management objects; toward “triadic” occupational health protection which are social well-adapted on the aspects of occupational physical health, mental health and occupation; to unify the Occupational Safety and Health Occupational Health and Safety legislation to promote good governance synergies; and establish the concept of occupational health risk management, strengthen early warning and prevention and the priority of control, and come into the whole process of comprehensive occupational health and disaster management.

Key words: Workers; Occupational Health; Occupational Safety

1. Introduction

“Any law norms of production and formation are from the concept, which is the basic premise of thinking, cognitive foundation, but also the basic material of scientific knowledge.” As Lorenz said: “It is the task of a law to classify the large number of things which are different from each other with straightforward manner, describe them with clear and easily recognizable elements and give them the legal sense of ‘the same’ by the same the legal effect.” As the “first condition” and the “first step” of legal protection of workers occupational health, the concept of occupational health awareness is the logical starting point of their legal protection. However, despite intensified with the occupational health problems, more and more scholars began to focus on this area, but the meaning of occupational health scholars is not researched deeply. Overview of the academic use of the concept of occupational health can be summarized as the following representative view: first, the occupational health of workers is thought as the professional activities of musculoskeletal health, namely physiological concept of Occupational Health; the second is to be confused with occupational health occupational safety, while occupational health is “shielded”; third is that they take the occupational health protection equivalent to the “prevention of occupational diseases”. These views ignore a lot of gray area, affecting the explanatory power of this concept and leading to legal protection as a starting point a “practical” bias, so we need to seriously face this problem.

2. An occupational health cognition connotation: from “physical model” to “physical - social - psychological model”

There is a misunderstanding in the existing studies currently in China that occupational health is skeletal muscle and other workers is not compromised physiological state of the state, namely physical occupational health. For a long time, practice and theory about the occupational health are mainly concentrated in the skeletal muscle and other health protection; China labor standards do not cover the psychological occupational health regulation. The newly revised “Regulations on Worker’s Compensation Insurance” in 2000 also does not provide compensation for moral damage content, and “the supreme court’s judicial interpretation and law-application for personal injury cases” (Interpretation [2003] No. 20) has ruled out the possibility that injured workers can claim indemnity in accordance with the spirit of tort damages to the employer. Although the modern work environment has undergone profound changes, but the subject of occupational health research is still narrow, mainly on physical factors, chemical factors, or other physical conditions resulting from occupational health problems. In fact, this is an artificial compression of occupational health connotation. In the charter of World Health Organization health is defined as: “It not only refers to the elimination of disease and frail, but rather refers to a physical, mental, and social well-state.” ILO Recommendation No. 164 states that “work-related ‘health’ term not only means the absence of disease or infirmity, but also the physical and mental health and social factors related to work safety and health effects directly.” Physiological function is inseparable with the nervous system, and physical health and mental health are closely related. Meanwhile, as a social animal, people and their social environment are symbiotic and only social adaptability good talent is healthy existence, therefore, healthy is a healthy physical, mental and social adaptability state. Correspondingly, occupational health should also include physical, psychological and social dimensions, namely professional activities to maintain the integrity of the body physiology, steady and good state of mind and good social adaptation. Good social adaptation is a vague concept, in general, whose emphasis is on workers and occupational activities performed to achieve a harmonious state of adaptation, in assessing the occupational health damage after rehabilitation of social presence is important. From 1950 when the ILO and the World Health Organization clearly put forward the content and the concept of occupational health, occupational health has moved from the traditional “physical model”, “physical - social model” to “physical - social - psychological model”, so, the future occupational health protection cannot just stay in the protection of workers’ physical health, but should be conducive to the protection of workers overall healthy.

Especially with industrialization, urbanization and the development of the information revolution, workers work pressure increases, and a variety of psychological disorders caused by work pressure are increasing too. A large number of occupational medicine researches indicate that psychosocial hazards at work cause psychological pressure and many physical and mental diseases and health problems through a variety of physiological, psychological pathogenic mechanism. The psychological pressure because of work laborers occurrence of mental illness and even lead to suicide case has increased year by year, leading to reduced productivity, loss of human resources, organization and management costs, causing a tremendous social burden and losses, but also alerting the occupational health ignored in the mental health and social adaptability. China is in a period of social and economic transformation, in which industrialization and urbanization acceleration, laborer psychological discomfort and social adaptation disorders and other mental health problems have become increasingly emergent, high incidence of mental illness of workers cannot be ignored, and many theory disputes and practice of many problems ensued. Examples are as follows:

Case 1: when Mr. Kang was using the hoist transport wine, the hosts suddenly fell down, and hundreds of bottles of wine smash causing him too frightened. Through the diagnosis of the Mental Health Center of Shandong Province, he has got psychogenic mental disorders, which raised related injuries applications. China has not taken the mental-related diseases as occupational diseases. So is his injury industrial injury?

Case 2: Mr. Yang in the unit work was hit in the head with an iron bar which causes skin lacerations (3CM), and after simple debridement, the unit did not declare the injuries. Then Young got dizziness, headache, insomnia and other phenomena, and chopped his wife and children and suicide. Forensic think Yang suicide under the influence of depression. His wife in March 2007 applied to identify Young as head trauma injury, while required to be identified due to a head injury caused by mental illness and suicide was caused by the expansion of fatalities. So is his injury caused by trauma and mental troubles identified as work-related injuries? First and second instance are in the uncompromising with various judgments.

These cases exposed that occupational health and safety in mental health cannot be ignored, but also the puzzle of practical and theoretical problems of the urgent need. For a long time, as the occupational health law has focused on musculoskeletal health, the attention paid to the mental health of workers and social adaptability is inadequate. And because many of its Occupational Health Act contain a number of legal norms of the natural sciences technical specifications, as a social one scientific jurisprudence got little attention, which is the lack of a comprehensive, systematic and prospective studies. Against the foreign growing legal protection and research, the mainland of China is still in the early stage of occupational health and psychological point of its legal governance research. Therefore emphasizing the importance of the occupational health “physical - social - psychological model” and explore the importance of protection path. It is necessary to establish a concept that the connotation of occupational health should not be limited.

3. The awareness relationship of the occupational health and occupational safety: from the “hidden and unapparent” to “dialectical unity”

In the existing research in China, for the relationship between occupational safety and occupational health, there are two tendencies, one is to take occupational safety as generic concept, including occupational health, and the other is to fragment the Occupational Safety and Health subjective. In practice, occupational accidents often result in death, injury, and other real-time, outside the dominant “red wound”, and occupational health accident with its certain occult and delayed, is a bloodless “white wound” which is not shocking as the Occupational Safety in a short time. Perhaps because of this, currently no matter of the relevant legislative texts or a specific practice, there was a phenomenon of emphasis on occupational safety and ignoring occupational health underestimate. From “notice on the strengthening of production safety work” issued by the State Council in 1993, occupational health has been affiliated to occupational safety work for a long time, until the promulgation of 2001 “Production Safety Law” (referred to as "Production Safety Law", the same below), and 2002 “occupational Disease Prevention Law of the PRC” (referred to as "occupational Disease Prevention Law", the same below) slightly changes the this situation. However, in practice, occupational health hazards - such a disaster without bloodshed, with a typical latent and occult, unlike the Occupational Safety and accident injuries, is shocking, affecting performance and achievements, and thus some government departments exceptionally heavies “red wound” (occupational Safety and accident) and lights “white wound” (occupational health and disease), and is negative to prevention and control of occupational health hazards.

Occupational safety refers that in the process of professional activities the employee does not place a variety of casualties; and occupational health refers that in the process of professional activities, workers’ health can be protected from harmful factor infringement. Occupational safety concerns the absolute notion of accidents, disasters and death, and its direct purpose is to protect the lives and safety of workers, but occupational health mainly concerns the possibility of maintaining and restoring the health of the case, related to the person’s well-being, and its direct purpose is to protect the health of workers. Therefore, occupational safety does not cover occupational health content. From the name of laws and regulations of “Occupational Health and Safety Act” of several countries in Europe and America, and Japan’s “Labor Safety and Health Law”, the two are not parallel. And with the technology development and industrial progress, occupational safety accidents in developed countries have basically been solved, and occupational health became the focus of protection.

Meanwhile, the Occupational Safety and Health are closely linked, some of the causes of occupational safety hazards incidents often lead to the occurrence of occupational health hazards, such as coal mine safety accident leads to the immediacy of the miners appeared carbon dioxide poisoning and other accidents, but in most cases, occupational health accident is slowly accumulated latent, persistent, delayed disease in contact with hazardous substances. Generally speaking, occupational health protection and occupational safety protection need to be coordinated interaction both in the prevention and control of regulatory and other aspects, but we cannot because of the important relationship between the two, simply look at the relationship, and even cover occupational health concept with the concept of occupational safety, or replace the concept of occupational health occupational safety concept. In this context, the emphasis is not hypocritical split of the two concepts. But considerations on the chinese reality, we should avoid occupational health’s “shadowing” to Occupational Safety Concept, correct the current legal governance “directional bias”: emphasis on occupational safety, ignore occupational health and contempt.

4. Recognition of occupational health prevention object: from a disease-oriented to risk-oriented

In China traditional values, occupational health protection laws and regulations which take “Occupational Disease Prevention Law” as the core, make the public and even the researcher form a cognitive pattern in which they take a statutory occupational disease as the object, as an occupational medicine scholars have pointed out: “in practice, there is a confusion between occupational Health and occupational Disease Prevention of vague understanding.” While we lack of cognitive models in the analysis, the author proposes an occupational health risk management-oriented cognitive model and analyze its strengths and its legal governance requirements.

China current labor relations legislation calls hurt phenomenon after identification through certain procedures as occupational diseases. Occupational disease refers to diseases caused by contacting with dust, radioactive substances and other toxic and harmful substances. At present, national government authorities develop specific occupational directory, and the directory in the column is called statutory occupational diseases. Statutory provisions on occupational can be divided into three types: first, pure list system, which clearly sets out in detail the type and name of the occupational disease, those who are not classified as occupational diseases can not be identified in accordance with the process be compensated, typically countries such as the United Kingdom; second, general clause, which is not explicitly listed occupational diseases, only comprehensive provisions or definitions, that can prove to occupational diseases and work-related, typically countries such as the United States; third, mixed system, which in addition to a number of diseases listed in accordance with the law, the other open, but cited a book (opening clause), typical of countries such as Germany. China practices pure list system, and those who are not classified as occupational diseases can not be identified in accordance with the process be compensated. While reflecting the “statutory occupational disease control oriented” cognitive philosophy, it faces severe problems: First, easy to shrink management objects. With modern technology advances, the continuous generation of new occupational hazards, health workers face new threats, and many unapparent occupational health hazards emerge, such as cardiovascular diseases, digestive diseases and health problems related to specific industries. In response to the new challenges of occupational health work, the World Health Organization technical report on the occupational health proposed a concept of “work-related disease” to supplement the existing concept of “occupational disease”. “Work-related disease” is also known as multifactor disease, which refers to occupational activities associated with the multi-factor disease occurred in laborers. The harm of occupational hazards in the role of a variety of factors often results in workers suffering from a disease or induces reveal their underlying disease or cause existing disease aggravated, accelerated or recurrence. Traditional occupational concern at the center of gravity of the statutory governance model significantly reduces the prevention of the object. The second is that concerning about the “symptoms” but ignore “causes” easily leads to heavy treat and light defense. With the development of society and modern technological advances, new chemical substances and working condition changes and the increasing working pressure, have brought an endless stream of new occupational health problems, such as mental disorders caused by social work pressure. Moreover, many occupational health hazards and other factors combine to form occupational diseases, presenting challenges to the legal occupational table. From the global trend, occupational catalog is constantly advancing with the times. The main purpose of the table occupational injury compensation is to define the scope of the directory, so diseases which is absent from the table cannot be compensated. Of course, it also has functions of alerting and reminding, but as discussed above, this cannot cover all of the occupational health risks. So just focusing on the statutory occupational disease prevention and control not only shrinks the object of preventing, but also be obscured by a surface phenomenon of occupational health problems easily.

Occupational health hazards have complex causes, as well as occult and delayed hazard scale and severity of negative externalities. The general trend of recent international occupational health sciences is that, with the development of occupational health concerns, it begins to concern more general risks including worker's physical condition, “rather than only certain kinds of diseases” For “risk factors” of the prevention of occupational health hazards, we do not need to request a “strong relationship between the conditions”, reflecting the forward-looking and comprehensive regulations. Occupational Health Technology report of the World Health Organization (WHO) presented “work-related disease” notion, namely “marks the areas of concern from the narrow occupational disease towards between various workplaces associated with different degrees of non-causal specific changes in risk.” It is shown in the following figure.

Occupational health risks is a much broader concept than “occupational disease”, which includes not only national statutory occupational diseases in the table, but also focuses on the present in the workplace or within a particular occupation engaged in professional activities that may cause workers health disasters or adverse health effects of the various hazards. So its areas of concern from the narrow “occupational disease” toward various different causal links between the extents of workplace non-specific risks associated with the transition.

5. Legal protection concept adaptation based on new cognition of occupational health

By the definition of occupational health and management of related concepts connotation, occupational health concept has been clear: occupational health of workers is a complete body physiology, steady and good mental state and social well-adapted stable state. Occupational Health has the following characteristics: it includes the physical, psychological and social aspects; it is dynamic, along with the development of social development; occupational Health and occupational Safety are dialectical unity, and occupational health protection is risk-oriented, rather than confined to statutory occupational disease. This understanding is corresponding to the inherent nature of occupational health compliance requirements, leading the legal protection of occupational health and adaptation:

5.1 Protection from physical health to “physical, psychological and social adaptation good” three-dimensional health protection

With economic globalization, increasing competition, rapid technological innovation, China labor environment has undergone major changes. Workers face more physical, psychological and social risks and hazards, and new occupational injuries continuously emerge, so the traditional occupational Health Act has been difficult to adapt to the real needs. Therefore, the future occupational safety law should go beyond the traditional emphasis on security to protect the health of the shackles, and promote physical health, mental health, and social adaptability:

To establish the concept of the work environment right. Working environment right does not just refer to the health of workers rights protection, also includes a workplace mental health and social adaptability good protection, in order to achieve the highest standards of health and comfort of the psychological environment for legislative purposes, which is a new realm of the development of occupational health protection. Sweden has modified the previous workers protection law into worker environment rights law, Norway also specially formulated workplace rights law. China’s future development of occupational health and safety law should move towards “physical - social psychological” protection, focusing on the protection of the work environment right.

Legislation establishment of “physical - social psychological” occupational health protection mode. In the future, we need to modify the definition of occupational diseases in the second article of “Occupational Disease Prevention Law”, whose causative factors are no longer confined to the dust, radiation, toxic substances and other harmful substances, but also include social pressure and other risk factors. Secondly, it is recommended that workers’ mental illness due to work stress should be included in the List of Occupational Diseases within the scope of compensation into the work injury insurance, and the most important and urgent is the need to include post-traumatic stress disorder (as mentioned in the case of two diseases ) and depression after injury. In this way, we can beyond the traditional limitations of physical health protection, emphasize the overall health and safety of the working environment and reduce occupational injury risk, thus achieving the goal of health promotion.

Improve the specific implementation mechanisms. We need to strengthen labor inspection regulations, mental health assessment, risk communication psychology, psychological counseling and other content right (force) obligation mechanism, clear the responsibility attribution and reporting time of specification of occupational injuries, and actively implement duty and obligation of the employing unit labor psychological occupational health, self-protection management and security education and training aspects, and carry out a plan to promote planned, positive, persistent workplace mental health promotion programs to prevent and control mental illness. Secondly, we must pay attention to the rehabilitation of injured workers reconstruction, not only to promote the rehabilitation of workers with mental illness, but also stress the social rehabilitation and vocational rehabilitation. Through the establishment of vocational rehabilitation assessment and accountability, not only make the injured worker get timely and effective treatment, but also protect the workers to have the institutional support to want to re-employment or to maintain existing job or return to work to overcome old related disorders support to ensure their adaptation in social life.

5.2 From heavy Occupational Safety and light Occupational Health to systematize and good governance

Latent, occult and complexity of Occupational health risks decide the professional of occupational health protection, while the Occupational Safety and Health have a close link, we need to emphasize systematize and good governance. Currently the legal protection of occupational health system with Occupational Disease Prevention Law as the core and the Occupational Safety and legal protection system with “Production Safety Law” as the core architecture the dividing and conquering situation of the Chinese occupational health and occupational safety. In the specific regulation, because China occupational health regulatory mechanisms has experienced the labor department responsibility system in the early founding period of this country, the health administrative department system in 1998, the health sector and production safety supervision department “cohabitation” system in 2003, and the newly revised “Occupational Disease Prevention Law” which takes the production sector regulatory regime in 2011. Through many of the shifting alliances, it has formed a production safety supervision and management departments, health administrative departments of labor and social security administrative departments at the core of “concerted efforts” but the “bulls dispersed” situation.

Therefore, there are serious “fragmentation” governance orientation in the occupational health protection on the internal mechanisms of occupational safety and occupational health and protection of the relationship: (1) institutional fragmentation: legal protection of occupational health hazards institutional design is lack of coordination, and even have conflicts and contradictory, such as too much emphasis on complement compensation (pay) and neglect prevention and break institutional balance; (2) regulatory powers and resource allocation fragmentation: for example, the safety supervision departments have no professional independent department to undertake occupational health, and health department has no enforcement authority, and various regulatory bodies manage are segmentation and lack coordination; (3) the fragmentation of the system during operation: occupational health protection processes are broken, rigid, heavy compensation (pay) and light prevention and rehabilitation, the process of mutual is segmented and so forth.

In order to achieve the purpose of protection of occupational health, we must recognize the relationship between occupational safety and occupational health rightly. As the futurist Alvin Toffler said, “To re-integrate the right big ideas, as well as on the general theory of the fractional part into the overall return.” “Faced with occupational health management with the global issues,” you first need to emphasize the dialectical unity of occupational health and occupational safety systems, break the current legislation of both decentralized, functional partitioning, regulatory discrete situation, and formulate a unified “Occupational Health and Safety Act” to integrate the existing “occupational Disease Prevention Law” and “production Safety Law”. Second, we should improve the integration of occupational safety and health regulatory model, and establish a relatively independent occupational health sub-supervision and law enforcement agencies, and the lead in establishing occupational health sector regulation coordination mechanisms to promote occupational health and safety protection for joint development.

5.3 A whole process of governance from a passive response to prevention and control of priority

Occupational health protection risk-oriented philosophy requires the awareness of the risks of new occupational hazards, analyze and evaluate and put them into control objects. On the other hand, it is no longer limited to the statutory occupational protection, “making the workplace healthier eyes of governance move from risk attributes of the work itself to a variety of risk factors associated with workplace.” A full range of occupational health hazards governance model is not only adopted for traditional occupational diseases, but also for multifactor diseases and the “work-related disease” and other general risk prevention, such as emerging technologies product Nan particle materials.

Ideal regulatory mechanisms need to prevent and control occupational health management from the source to the early prevention and control in the process of labor protection, manage occupational hazards consequence, to clear responsibility in the formation of occupational therapy rehabilitation, and manage the integration powerfully, seamless regulation (see below figure), but China occupational health prevention and control regulatory mechanisms is still far to reach this goal. Although many scholars proposed to improvement suggestions about occupational health supervision dispersed, overlapping functions, un-standardized regulatory agencies settings, the lack of definitive measures, but in context of the continuous occupational health disaster, this “government regulation dependence” reform path does not eradicate the dilemma of occupational health protection. Occupational health laws should govern toward a mode of government regulation guidance, market coordination and the main power: optimal allocation of government supervision and monitoring of the management of rights, to mobilize the enthusiasm of the employer initiative, enrich and strengthen the rights of workers’ occupational health, the formation of “internal controls” and “external monitor” interactive coordination of occupational health promotion approach. This requires: the first is to form system “cooperation”: including occupational health hazard reporting, evaluation system; “three simultaneous” system; occupational hazards assessment system; standardization system; occupational health surveillance system; education and training system; prevention and control of industrial injury insurance system, etc. institutional system (see the below figure). The second is to improve the implementation of the safeguard mechanism: It is necessary to take the health administration department of the core regulatory body, other departments cooperate to improve the supervision and coordination mechanism, to adopt a linkage, consolidated supervision model. In the Central, the Minister of Health and the State Administration of Work Safety Secretary can be regarded as convener, and in the local co-ordination by all levels of government, the Secretary of Health and Safety Authority Secretary can be regarded as the convener, making formation of normalization and legalization of “responsible government, departmental interaction” regulatory coordination mechanisms. Followed, we should arise the employer’s positive initiative, propose system of the difference between rates of injury insurance mechanism for the prevention and control of occupational health hazards good performance the employer had a lower rate, and vice versa, then high; meanwhile, we should sound the participation in monitoring occupational health rights obligations and responsibilities of institutional arrangements of industry associations, occupational health service organizations, trade unions, community, labor, social media and other social subjects, with the procedural rules of science to promote the participation of social regulation system technology. Moreover, we should enrich and strengthen the rights of workers in occupational health, refine and strengthen the realization of the right path, such as rules to refuse dangerous work as specified safeguards, and clearly define employers and workers occupational health consultation procedures.

6. Acknowledgement

This article is one of the research results of East China University of Politics for the legal protection of workers’ occupational health and mechanism innovation, No.12HZK008.

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