Castellán

A little context:

According to the original 2014 standard, the National Council for Safety and Health at Work (CONASSAT), chaired by the General Labor and Social Security Inspection of the Ministry of Labor and Social Security, and composed of the Ministry of Public Health, the State Insurance Bank, the Social Security Bank, the workers' representation (PIT CNT) and the employers, conducted a thorough analysis of the minimum conditions for Occupational Health and Safety Services (OHSS). This included their integration, objectives and functions, as well as general conditions and a mechanism for their gradual incorporation into all branches of activity.

The implementation was carried out through successive decrees proposed by CONASSAT to the Executive Branch over the years. As a result, the regulation has generated confusion among companies. In addition, the health emergency due to the COVID-19 pandemic and its impact on the economy hindered compliance with the originally established deadlines.

What are Occupational Health and Safety Services (OHSS)?

The OHSS are a multidisciplinary team that provides advice on the prevention of occupational risks and diseases, which must be composed of a safety advisor and an occupational health specialist (or occupational medicine company), who work together and in a coordinated manner.

In other words, we are talking about the birth of the obligation to work on prevention, not only in terms of occupational accidents, but also in terms of health, incorporating the advice of a doctor in addition to that of a preventionist.

They can be articulated as common external services for several companies, without the need for exclusivity or for the professionals to be part of the company's staff.

It is also established that companies must have a Risk Prevention and Health Monitoring Plan, prepared by these services, with the cooperation of the health delegates (so that the advisors can, for example, identify any relationship between the causes of illness or certifications and the health risks that may arise in the workplace). Workers must be informed of the health risks involved in their work and how to prevent them.

Companies of all activities, whether commercial, service, industrial, rural (with or without profit), and both in the public and private sectors, must have these OHSS. The Decree in 2014 foresaw that the Executive Branch could anticipate its application for some sectors of activity (as initially happened with the chemical industry, dairy, meatpacking plants, among others).

Which companies are currently obligated?

As of May 2024, the standard is already applicable to all companies that employ more than 5 workers, with different levels of requirements, as we will see below:

1. Companies with more than 300 workers (a number that can be reached by adding different works or personnel from several locations of the same company): must have a permanent service integrated into management, composed of a safety advisor (e.g. Technologist Engineer Preventionist or Prevention Technician) and an Occupational Health specialist (or occupational medicine company). The OHSS can be external.

2. Companies with between 50 and 300 workers must have a service composed of the same professionals, which must intervene quarterly, at a minimum, and can also be external.

3. Companies with between 5 and 50 workers must implement the OHSS only in cases where risks requiring special protection for workers are identified and in which the IGTSS may require it. As a counterpart, they must necessarily have a Risk Prevention Plan prepared by an authorized technician (e.g. Prevention Technician). This plan must be updated at least every 6 months, or when there are changes in working conditions, production processes, etc. It must clearly identify hazards, assess risks, propose corrective measures, compliance schedule, etc. The exhibition of the plan is required during inspections by the agency or when companies are ordered to present it. It is expected that the MTSS will begin to monitor compliance with this requirement.

What are the functions of these OHSS?

Regarding tasks or assignments, the standard lists point by point a list of functions that we summarize below:

- Identification and assessment of occupational risks.

- Surveillance and advice on factors affecting health at work.

- Participation in programs to improve working conditions.

- Assistance in the adoption of professional rehabilitation measures.

- Collaboration in the dissemination of information and training in health and hygiene.

- Organization of first aid and emergency care.

- Analysis of occupational accidents and occupational diseases and statistical record.

- Preparation of emergency and contingency plans.

How is compliance monitored?

Companies must bear in mind that the General Labor Inspection (IGTSS - MTSS) is responsible for supervising and controlling the operation of these services, with advice from the MSP on health matters.

The IGTSS may sanction companies according to current regulations, taking into account that these fines (based on reasons of occupational safety and health) are among the most severe.

Finally, it should be noted that -in some cases- non-compliance with this obligation could affect the application of the “Corporate Criminal Responsibility Law” (Law No. 19,196). This standard created an offense that is established when it is found that the employer has endangered the safety and/or health of workers in case of not having adopted the prevention measures provided for in the laws governing occupational safety and health. Eventually, this could be the case of these OHSS.

The latest news: Creation of a registry for the survey of OHSS.

The Ministry of Public Health (MSP) recently established an electronic registry for the survey of Occupational Health and Safety Services (Ordinance No. 324/024).

Registration with the MSP will be mandatory and will be done in electronic format, with free access through the Ministry's website. This portal will be managed by the Division of Environmental and Occupational Health. Companies must register the responsible persons for the Service and update the information annually or in case of a change in the Service's responsible person. All information provided will be considered as a sworn statement.

Ultimately, it is currently essential (and not just “advisable” as before) to seek advice on what is expected of each company according to this regulation and especially on the best practices that can be used, with the documentation and written record of actions being fundamental.

May 30, 2024.