Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Welcome to week 2 of our Littler World Cup series, where we compare various aspects of labor and employment law in some of the countries competing the following week. In Part 1 of this series, we examined paid vacation and annual leave entitlements available to employees who might be taking some time off to enjoy the games. In Part 2 we kicked around short-term sick pay requirements and tackled who pays for this benefit. In Part 3 we dive into general workplace safety requirements.1
Japan vs. Costa Rica (November 27)
In Japan, the Industrial Safety and Health Act, which applies to most employees, requires employers to organize safety and health management systems (such as, depending on the size of the workplace or other circumstances, the appointment of a general safety and health manager, safety officer, health officer, safety and health promoter, industrial physician, and operation chief). The Industrial Safety and Health Act also provides for:
- measures for preventing danger to or health impairment of workers;
- regulations on machines and harmful substances;
- measures in placing workers;
- measures maintaining and promoting workers’ health; and
- measures for creating a comfortable work environment.
In general, the Industrial Safety and Health Act applies to all industries. However, some regulations under the law are industry-specific (for example, regulations regarding machines and harmful substances are relevant only to the industries that use certain machines and harmful substances). Amid infectious pandemics, such as COVID-19, employers need to consider requirements, guidelines and recommendations issued by Ministry of Health, Labor and Welfare and relevant industry organizations in order to provide a healthy and safe environment for employees.
Employers and employees in Costa Rica are required to follow certain health and safety rules and obligations.
It is the employer’s responsibility to provide appropriate conditions for the employees to perform their duties in a healthy and safe environment. There are several dispositions from the Ministry of Labor that regulate the conditions that a workplace must have, including the minimum number of restrooms (one for every 20 male employees and one for every 15 female employees, when the total number of employees is below 100), the width of the hallways, etc.
Employees, in turn, are obligated to follow the health and safety dispositions set forth by the employer. Failure to do so can result in a yellow card (disciplinary action).
The National Insurance Institute (“Instituto Nacional de Seguros” or INS) is the institution in charge of taking care of employees that suffer work-related accidents or medical conditions. The employer must notify the INS of the occurrence of an accident within eight days from the date of the accident.
Amid infectious pandemics, such as COVID-19, employers must consider requirements, guidelines and recommendations issued by public health officials in order to provide a healthy and safe environment for employees.
Spain vs. Germany (November 27)
There has been an increase in the legal obligations related to the effective protection of employees rendering services in a company. The concept of “prevention of labor risks” can be understood to mean the totality of the activities or measures adopted or established in all phases of the company’s activity for the purpose of reducing or eliminating work-related risks.
Indeed, whether employees are office-based or work remotely, employers have the obligation to implement health and safety measures, which include:
- a general occupational risk prevention plan;
- providing employees with prevention and security equipment and means;
- an information plan;
- preventive activity planning;
- implementing measures to avoid occupational hazards;
- offering employees medical checks and emergency plans;
- implementing risk assessments;
- training employees regarding risks at work, i.e., face-to-face or online courses;
- offering annual medical checks;
- having a record of work-related accidents and illnesses; and
- an emergency plan.
Companies should contact their in-house health department or the health and safety service provider, which is the official registered health and safety service provider retained by the company, to assist with the specific rules for the work center. This can be (and is usually) outsourced to an external qualified and registered service provider and requires a preventive method certificate stating there is a contract with the prevention provider.
Health and safety obligations take on greater importance during remote work. Therefore, it is advisable to include a clause in remote work agreements stating that the company can verify that the home office meets the necessary conditions of occupational risk prevention and safety, and that the employee undertakes to collaborate with the company in carrying out any checks deemed necessary to verify the safety of said workplace and to be able to properly determine the measures to be adopted.
Therefore, the risk assessment and the preventive planning activity must consider the psychosocial, ergonomic, organizational, and accessibility risks of the remote work environment. The risk assessment should only cover the area set aside for the provision of remote work and should not extend to other areas.
As part of its duty to implement measures to avoid occupational hazards, the company must obtain all the information about the risks to which the remote worker is exposed. However, before the company conducts a visit to the home office to gather this information, the company must (1) provide the employee and the employee’s health and safety delegates with a written report justifying the visit; and (2) obtain the remote worker’s authorization (or that of a third party when the home office is not the remote worker’s regular place of residence). If permission is not granted, the risk assessment may be carried out by the company on the basis of the identification of the risks arising from the information obtained from the worker (self-assessment) in accordance with the instructions of the prevention service.
Failure to comply with health and safety obligations may lead to fines in addition to the risk of a surplus payment of the employees’ disability pension.
The authorities regularly carry out investigations regarding safety at work. Each work center needs to have a book for such investigations where any infringement is registered. The Labor Inspection has recently launched a campaign to address psychosocial risks, particularly stress, as it is considered to be one of the causes of the highest absenteeism at work.
Wales vs. England (November 29)
For those of you keeping score, the labor and employment laws between Wales and England are- substantially the same with only minor differences, as they share a common legal framework within the United Kingdom. Parliament in London, England, makes laws for the whole of the United Kingdom, while legislatures in Wales, Scotland, and Northern Ireland have the power to legislate on matters that are not expressly reserved to UK Parliament. Most employment and industrial relations law is not a devolved competency of the Welsh legislature but is reserved to the UK Parliament. Some small differences do exist, however, for example in respect of some aspects of industrial relations law.
So with that level playing field in mind, the key legislation applicable in determining the health and safety rules that applies in the workplace in England and Wales is the Health and Safety at Work etc. Act 1974. It sets out that every employer has a duty to ensure, so far as is reasonably practicable, the health, safety, and welfare at work of all its employees. There are also scores of additional statutory provisions (depending on the industry) and regulations (such as the Management of Health and Safety at Work Regulations) that would need to be considered depending on each circumstance.
There are a number of important specific duties with which employers must comply:
- Health and safety policies: Employers with five or more employees have a statutory obligation to keep an up-to-date, written statement of its general policy with respect to employees’ health and safety at work and to inform employees of the policy.
- Risk assessments: All employers, irrespective of the number of employees, must carry out a risk assessment to identify the measures it needs to take to comply with the relevant statutory provisions.
- Consultation with safety representatives: Employers are obliged to consult on health and safety matters with any duly elected safety representatives of the workforce. If there are no elected safety representatives, then the employer is obliged to consult with its employees.
- Reporting: Employers must report all work-related health and safety incidents specified in the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013.
The Health and Safety Executive, Britain’s national regulator for workplace health and safety, also publishes guidance on its website to assist employers and employees. It is a criminal offense to breach the statutory duties, and those in violation are subject to a prison sentence of up to two years, depending on the circumstances of the breach. Violators may also be subject to an unlimited fine for the most serious cases (e.g., where fatalities have resulted from health and safety failings in the workplace).
The Health and Safety at Work etc. Act 1974 also places a duty on employees to take reasonable care for the health and safety of themselves and of other persons who may be affected by their acts or omissions at work. It also obliges an employee to cooperate with their employer so far as is necessary to enable the employer to meet its statutory requirements. For the avoidance of doubt, the employee should not intentionally or recklessly interfere with or misuse anything provided in the interests of health and safety.
Depending on the industry in question, there may be specific statutory provisions concerned with health and safety for that type of work. The Health and Safety Executive has also published industry-specific guidance, which includes guidance on specific Regulations that apply. These industries include: agriculture, biocides, engineering, gas, mining, molten metals, nuclear, and quarries. Employers should check guidance from the Health and Safety Executive and take advice to determine whether their industry or the type of work to be undertaken is subject to specialized health and safety regulation.
Employers may also face liability for health and safety breaches under personal injury law and corporate manslaughter legislation.
Amid infectious pandemics, such as COVID-19, employers need to consider requirements, guidelines and recommendations issued by public health officials in order to provide a healthy and safe environment for employees. Employers will need to carefully balance their data privacy obligations to individual employees with their health and safety obligations to the workforce more generally. This can be a delicate balance and employers should consult with legal counsel as necessary.
Poland vs. Argentina (November 30)
The basic obligation of the employer in Poland is to protect the health and life of employees by ensuring safe working conditions. Specifically, an employer must:
- organize work in a manner that ensures safe working conditions;
- ensure compliance with the provisions of occupational health and safety law, give instructions to avoid any breach of duty, and monitor follow-up measures;
- inform employees of hazards to life and health affecting the workplace in general and each working position, including the procedures to be followed in dangerous situations;
- provide the resources necessary to administer first aid in emergencies, fire or evacuation of employees;
- designate employees responsible for first aid and measures connected with firefighting and evacuation of employees;
- ensure communication with external emergency services;
- ensure machinery and other technical equipment is safe;
- assess and document occupational risks and apply necessary preventive measures to mitigate those risks, as well as inform the employees thereof;
- take measures to prevent occupational and other work-related diseases;
- provide appropriate meals and drinks, free of charge, to all employees working in arduous conditions, if necessary;
- provide appropriate hygiene and sanitation facilities and personal hygiene products for employees;
- ensure that buildings used as work premises are safe;
- provide personal protective equipment free of charge and instructions on how to use it;
- provide initial and periodic training in health and safety at work;
- direct employees to undergo an initial examination, periodic examinations thereafter and ‘control’ examinations; and
- prevent accidents and occupational illnesses at work and keep a register of accident.
In the event of a likely or imminent danger to life or health, the employer must immediately inform employees of the danger and take measures to ensure adequate protection. The employer must give instructions to enable employees stop working, leave the hazardous area and proceed to a safe place.
If an employee is hired to perform work in conditions that involve exposure to harmful biological agents, the employer must use any available measures to avoid that exposure, or, if this is not possible, to reduce it. An employer must keep records of work involving exposure to harmful biological agents and a list of the employees who perform that work.
Before admitting employees to work, the employer should provide them with the initial trainings, i.e.:
- initial basic training, which concerns general information on health and safety rules and first aid; and
- initial workstation training, which should be provided inter alia to office and administrative employees (including employees working with a computer) as well as to other employees employed in conditions that are hazardous to health, onerous or dangerous.
The employer is obliged to provide periodical trainings to, among other workers, office and administrative employees (including employees working with a computer). In such a case, the training must be conducted at least once every six years, to all employees working in conditions hazardous to health, onerous or dangerous.
The employer in Argentina has a general duty of safety and security. Among other things, it means the employer is responsible for providing decent working conditions in a healthy and safe environment for all employees. Also, employees must comply with the rules about health and safety at the workplace such as wearing appropriate clothing for the activity or using the right tools. Employers are also obliged to retain insurance with a Labor Risk Insurer (“Aseguradora de Riesgos del Trabajo” or ART), an entity responsible for controlling employers’ compliance with its duty of safety and taking measures to prevent work-related accidents and diseases.
The National Superintendent of Insurance (“Superintendencia de Seguros de la Nación” or SSN) has issued a resolution on civil liability insurance for occupational accidents and diseases, which complements the Labor Risk Law. Employers may also retain civil liability insurance to address possible claims of work-related diseases or accidents.
Labor Risks Law, No. 24,557 (“Ley de Riesgos del Trabajo” or LRT) created a new compensation system for work-related accidents and illnesses, and it has been modified and complemented by the following:
- Decree No. 1,649/2009 on Upgrade of Disability Compensation;
- Resolution No. 35,550 on Civil Liability Insurance for Occupational Accidents and Diseases;
- Law No. 26,773 about a new regime to organize the repair of damage caused by occupational accidents and diseases;
- Decree No. 49/2014 on New Illnesses incorporated into the Official List of Occupational Diseases and Decree No. 472/2014 regulating Law No. 26,773; and
- Decree No. 54/2017 about the obligation for the employees to get through a medical commission before proceeding to a labor trial. Since Argentina is a Federation, all Provinces will have to decide to adhere to the legal standard.
Additionally, an employer’s duty to provide a healthy working environment now extends to preventing any damage to employees’ psychological health.
Certain industries that involve high-risk services within an unhealthy environment require specific rules on hygiene and safety matters, such as the adoption of special safety measures to protect employees’ health, regular medical examinations to monitor the employees’ health, use of adequate clothing and equipment for protection, etc. Due to the potential health damage arising from work performed in these industries, employees usually have shorter working days, additional social contributions, major medical coverage, and early retirement, among other benefits.
Due to the spread of COVID-19, employers who enable their employees to work from their home must inform the corresponding ART of the following:
- list of employees who will be rendering services under a home office regime, including name, surname, and Labor Identification Code (Código Único de Identificación Laboral or CUIL);
- address where the tasks will be carried out; and
- frequency of the provision of tasks (number of days and hours per week).
Regarding the employer’s duty of safety and prevention within the COVID-19 scenario, employers must comply with the protocols related to their type of business, as provided by their jurisdiction’s local health authority. Currently, the health and safety measures are more flexible, and are not mandatory.
Japan: Nobuhito Sawasaki (Anderson Mōri & Tomotsune); Costa Rica: Marco Esteban Arias Arguedas (BDS Asesores Jurídicos S.A. | Member of Littler Global); Spain: Sonia Cortes (Abdón Pedrajas | Littler); Germany: Thomas Griebe (vangard | Littler); United Kingdom: Raoul Parekh, Richard Harvey, Chris Coombes, and Stephanie Compson (GQ | Littler); Poland: Jakub Grabowski (PCS | Littler); Argentina: Mercedes Balado Bevilacqua and Tatiana Diaz (MBB Balado Bevilacqua Abogados).
1 The information provided in this series is from our Littler International Guide, which discusses more than 90 workplace law topics in over 45 countries/territories, including jurisdictions in every region of the world. For more information on the International Guide, please contact your Littler attorney or Knowledge Management Counsel Geida Sanlate. Click here to subscribe to Littler’s Global Guide Quarterly, to receive labor and employment law updates from around the globe.