Castellán

What are the “SPST”? Which companies does the regulation apply to?

In 2014, this regulation was approved (Decree 127/014), with the aim of promoting the health care of workers in the workplace. The Decree established the obligation to implement these “occupational health and prevention services” (SPST) in May 2019.

These SPST are a multidisciplinary team of advice on risk prevention and occupational diseases, which, as the regulation indicates, must be composed of a safety advisor and a specialist doctor in occupational health (or a company of occupational medicine), who work together and coordinated.

Regarding the tasks or duties that these SPST will have, the regulation lists in detail a list of functions and establishes that companies must have a risk prevention and health monitoring plan, prepared by these services. These tasks must be carried out with the cooperation of the health delegates.

Companies from all activities, whether commercial, service, industrial, rural (whether or not for profit), and both in the public and private sectors, must have these SPST. The Decree in 2014 anticipated that the Executive Branch could anticipate its application for some sectors of activity (as happened with the chemical, dairy, metallurgical, auto parts, refrigeration industries, among others), and finally now it enters into force with general scope.

What are the functions of these SPST? How should they work?

Among the various functions that the Decree determines, we highlight the following:

a) identification and evaluation of risks that may affect health at work;
b) surveillance of environmental factors and work practices that may affect health (including sanitary facilities, dining rooms, and accommodations);
c) advice on planning and organization of work that may affect the health and safety of workers;
d) participation in programs for improving working conditions and practices and in tests and evaluation of new equipment, in relation to health;
e) assistance for the adoption of professional rehabilitation measures;
f) collaboration in the dissemination of information, training and education in health and hygiene at work and ergonomics;
g) organization of first aid and emergency care;
h) participation in the analysis of work accidents and occupational diseases, keeping a statistical record of them;
i) development of emergency and contingency plans for accidents within the company.

It is established that the health surveillance of workers should not mean any loss of income for them. On the contrary, it must be free and, as far as possible, carried out during working hours (for example, occupational medical examinations).

Likewise, this regulation provides that all workers must be informed of the health risks that their work implies and how to prevent them, as well as workers must inform the SPST of any known or suspected factor in the work environment that may affect health, so that the advisors can identify any relationship between the causes of illness or absence and the health risks that may arise in the workplace.

When does the regulation come into effect? What is currently the obligation for companies?

Originally, both the level of intervention and the type of service contracted (external or internal) depended on the number of workers.

Currently, and after the modification approved on April 11, 2019, it has been established that in all cases these services can be organized as external services common to several companies, without the need for exclusivity or integration into the company's staff.

At the same time, as we mentioned earlier, its implementation has been partially extended. The new Decree - still unnumbered - establishes a new schedule for the entry into force of the obligation, depending on the number of employees the company has.

The obligation for companies can then be summarized as follows:

- From May 13, 2019, the regulation came into effect for companies with more than 300 employees (a number that can be reached by adding different works or personnel from various locations of the same company). They must have a permanent service that must be multidisciplinary and integrated by a specialist doctor in occupational health and another professional or technician who holds any of the following titles: a) Prevention Technician; b) Occupational Health Technologist; c) Prevention Technologist; d) Occupational Safety and Health Graduate; e) Prevention Technologist Engineer, which can be complemented by a Psychologist, nursing staff, and other specialties associated with health and safety issues at work. The SPST must be integrated into the company's management, with sufficient operational capacity, and means to carry out its functions, being able to be external.

- Those with between 50 and 300 employees will be progressively incorporated (by branch and sector of activity), as proposed by the National Council of Safety and Health within a maximum period of 18 months (from May 2019). They must have an external service, composed of the same professionals but with an intervention that can be quarterly.

- Those with between 5 and 50 employees must implement the SPST within a maximum period of 18 months from May 2019. They must have an external service, under the same conditions but in this case it can intervene semi-annually.

In short, it has been decided that the current obligation will be in a first stage for companies with more than 300 employees, partially extending its application to the others, without prejudice to the fact that there will be a six-month period from the entry into force of the Decree that expressly includes them or by the expiration of the corresponding deadline, in order to finish articulating the implementation and implementation of these SPST.

How will compliance with this new regulation be monitored? What relationship does it have with the corporate criminal liability law?

On the other hand, companies must bear in mind that the General Labor Inspection (IGTSS - MTSS) will be responsible for supervising and controlling the operation of these services, with advice from the Ministry of Public Health on health matters. Although inspections are expected to be carried out with reasonable flexibility, after the aforementioned six-month period has elapsed, the IGTSS may sanction companies according to current regulations.

It must also be borne in mind that this type of fines (based on reasons of occupational safety and health) are among the most expensive fines and are considered instant offenses (if at the time of the inspection it is found that the SPST were not implemented, a sanction may be immediately imposed even if the company later proves to the organization its compliance).

Finally, it should be noted that eventually, in some cases, non-compliance with this new obligation could lead to the application of the “Corporate Criminal Liability Law” (Law No. 19,196). It should be considered that this law created in 2014 a danger offense that is configured when it is found that the employer has endangered the safety and health of workers by not adopting the safeguard and occupational safety measures provided for in the laws governing occupational safety and health. This could well be the case of Decree 127/014.

In short, based on the regulations analyzed, it is mandatory and not just “advisable” as it has been until now. It is of vital importance to bear in mind that there are good practices that can be used to mitigate possible consequences of non-compliance, with the documentation and written record of actions being fundamental.

Montevideo, June 2019

(See May 2022 update regarding companies with between 50 and 150 employees: https://www.castellan.com.uy/es/novedades/servicios-de-prevencion-y-salud-en-el-trabajo-obligatoriedad-para-empresas-que-tengan-entre-50-y-150-empleados/ and February 2024 update regarding companies with between 5 and 50 employees: https://www.castellan.com.uy/es/novedades/novedades-en-materia-laboral-puesta-a-punto/)