The Law of Ukraine “On Safety and Health of Employees at Work” — key changes

For a long time now, the topic of the Law of Ukraine “On Safety and Health of Employees at Work” has been a hot topic in professional channels and chats, public and news, offices and smoking places. The purpose of this Law is to comply with EU requirements and replace the imperfect, irrelevant, but already so dear Law of Ukraine “On Occupational Safety and Health”. The justification for the need to adopt the act is as follows:

“The key problem to be solved is the outdated and ineffective way of state regulation of workers’ safety and health.”

Let’s take a quick look at this new Law in the format of a brief overview. Why? Because with an in-depth analysis of the provisions of this Law, you can write and, most importantly, defend a PhD thesis.

Interesting things await us at the very beginning. The definition of an employee is getting a new interpretation:

An employee is an individual who, within the framework of an employment relationship, regardless of the existence of a formal employment contract, performs work, including by court order, or provides services in favor (in the interests) of another person (employer), as well as a person who is undergoing training or internship with an employer, except for domestic workers, self-employed persons and members of a farm.”

You will agree that the definition is intriguing and leaves many questions. Judging by the new law, won’t everyone who is on the company’s premises be your employee? For example, you have a contractor who services the elevators of LIFTS LLC. At the time of an inspection of your company or an investigation, will the inspector not recognize the contractor as your employee because he thinks so? And the most interesting thing is that in the absence of any documents (training, medical examinations, etc.), all these points will not go into the order for your company?

Interesting????….We offer to consider other interesting aspects of the new law.

An interesting point is that the controlling and rule-making bodies themselves withdraw themselves from the scope of this law right at the beginning of its implementation:

I. Politics is all on the employer’s shoulders.

According to Article 2 — “This Law does NOT apply to persons of state bodies established in accordance with the legislation of Ukraine”. Judging by this sentence, the rule-making and future controlling bodies themselves do not have to comply with the requirements of this Law.

According to Article 4, the state policy is going to be based on the principle of “full responsibility of the employer for creating safe working conditions”, which contradicts all the basics of business processes and the distribution of roles and responsibilities in any company. In other words, the employer, regardless of how many professionals he or she has engaged to create safe working conditions, is the main culprit. Judging by the article, his task is not to organize the company’s business activities, but to supervise each employee’s compliance with the requirements of all four hundred and seventy-seven regulatory legal acts on labor protection that are currently in force.

II. Permits and insurance. Simplification or new challenges?

Interesting innovations regarding the obtaining and revocation of permits for the right to perform hazardous work are set out in Article 11. Instead of obtaining a permit or declaration of conformity from the MTB to perform hazardous work, the legislator proposes to perform such work on the basis of an additional life and health insurance contract for employees performing such work. Although these measures are by no means identical in content and do not have the same goal, this is one of the few useful innovations.

The provisions of the same article provide for the revocation of the permit on the following grounds:

1) an accident with a fatal or other serious consequence, if the investigation establishes that the event occurred as a result of the performance of high-risk work for which the permit was issued. In other words, if you have a permit to perform work throughout the country and an accident occurs at one site due to the employee’s absolute personal fault, your permit will be revoked.

2) a documented fact of creating obstacles to state labor inspectors in the course of their state control measures. It is difficult to comment here, except to say that the fate of your permit will depend entirely on the moral and ethical values of the state inspector, his mood and magnetic storms.

As for the permits for the operation of high-risk equipment, to which we are all accustomed, the provisions of Article 12decide to level them. Instead, it is proposed to introduce the need to notify the central executive body of the presence of high-risk equipment. It is worth noting that the notification procedure will be defined separately, and the conditions for accepting the notification may include the availability of certificates, declarations, approvals, acts, reports, projects, contracts, powers of attorney, orders, oaths, tears, and much more.

III. New occupational health and safety requirements: how will the management of the employee safety and health system change?

Article 14 of the new Law regulates the employer’s obligations to organize and ensure the functioning of the occupational safety and health management system based on the following structure:

1) avoidance, assessment, elimination of dangerous and harmful occupational factors and occupational risks;

2) adapting working conditions to the employee and preventing or reducing the impact of dangerous and harmful occupational factors and occupational risks on the employee;

3) replacement of hazardous work equipment, work processes, hazardous and harmful factors of the working environment;

4) developing a policy for preventing occupational risks in all aspects of the work process;

5) prioritizing collective protection measures over individual protection measures for employees;

6) ensuring that employees are informed about working conditions, training and briefings.

This is actually a very interesting point. Indeed, ISO 45001 also provides for a hierarchy of risk reduction measures — if one cannot be implemented, a less effective one is implemented, and so on down to the implementation of basic measures. However, the hierarchy set out in the Law does not exclude one principle from the implementation of the previous one. Thus, satisfaction of the requirements of Article 14 of the Law may be interpreted as the need to implement all of these principles, which is impossible a priori.

The work of the labor protection service in the new Law is regulated by Article 15. The following criteria were used as grounds for establishing the labor protection service:

The requirements for occupational health and safety services, occupational health and safety engineers and organizations providing occupational health and safety services will be established by the CMU in the future, but the Law does not yet describe this. Also, the main names of the organizations have been changed as well:

the labor protection service will be the authorized structural unit for employee safety and health, and the labor protection engineer will be the authorized employee safety and health officer. An interesting provision of this article is that the occupational health and safety service or occupational health and safety specialist must somehow have complete professional independence from the employer.

Article 18 defines the forms of audits of the occupational safety and health management system. Audits can be conducted internally — with the involvement of competent employees of the enterprise. And external — on the basis of a contract by companies that have the necessary documents. In the case of high-risk work, external audits should be conducted at least once every 5 years. Conclusions and recommendations based on the results of such audits must be provided at the request of the supervisory authority within 10 days.

IV. Medical examinations or monitoring of employees’ health?

he content of Article 19, which regulates medical examinations of employees, leaves many questions. Thus, it introduces the concept of monitoring the health of employees and developing measures.

Such monitoring, at the employer’s choice, is carried out by:

1) by a specialist doctor from among the employer’s employees who has a certificate in the specialty of “occupational pathology”, or

2) a primary care healthcare facility and a sole proprietorship that has obtained a license in accordance with the established procedure, or

3) a health care institution providing specialized medical care and a physician who carries out medical practice as a sole proprietor, or

4) medical and sanitary units.

Other requirements for the categories of employees who need to undergo IO have not changed much from the existing ones, namely:

1) employees under the age of 21 — annually;

2) employees whose workplaces/areas and working conditions contain harmful occupational factors — upon conclusion of an employment agreement — periodically according to a schedule approved by the employer;

3) night workers — prior to the conclusion of an employment agreement and periodically according to an approved schedule;

4) employees who have experienced a deterioration in their health condition due to the impact of working conditions and have contacted the employer in this regard — when the employee contacts the employer;

5) employees whose health condition poses a danger or causes harm to their health or the health of other employees — at the employer’s decision.

If, in accordance with a medical report, an employee is unable to continue performing his or her work duties for health reasons, he or she is provided with another job with the same average monthly salary or is dismissed with payment of monetary compensation in the amount of three average monthly salaries.

V. Training.

The amendments relate to the training of employees on safety and health at work. According to Article 20, employees must be trained, instructed and informed about safe work practices, occupational risks and precautions.

The requirement to conduct appropriate training on occupational safety and health for employees of third-party contractors/contractors who will carry out work at your enterprise remains unclear, namely, what “appropriate” means, as it can be interpreted in such a way that the enterprise must, in addition to providing information on possible risks and preventive and protective measures, organize training and all briefings (not only introductory ones).

A useful innovation is that the employer can independently determine the frequency of briefings and training of employees on occupational safety and health.

The frequency of briefings for employees performing high-risk work will be established by a separate CMU Resolution.

Important: if previously an employee had to be simply suspended from work for refusing to undergo briefings or knowledge testing, now such suspension will be without pay.

VI. Other innovations.

Article 22 provides for the possibility of employees’ independent decision to leave their workplaces in case of danger, and most importantly, this will not be considered absenteeism, violation of discipline, labor regulations, etc. But the article makes this provision sound a bit more complicated, namely: “Employees who have left dangerous workplaces in case of serious, immediate and imminent danger….”The legitimacy of such actions of employees may be further considered by the company’s commission with the invitation of a representative of the supervisory authority.

Article 28 for the first time introduces restrictions on working conditions for pregnant employees, women who have recently given birth, and those who are breastfeeding. The Ministry of Health is to develop a list of hazards and working conditions that may harm their health, fetus or children. Employees in this category may refuse to perform work that is included in this list. If performing hazardous work is contraindicated, the employer is obliged to provide them with another job in accordance with a medical report. If this is not possible, employees receive paid vacation. Pregnant employees are also entitled to paid time off for prenatal examinations.

The reference to different central executive authorities, one implementing state policy in the field of safety and health of employees and the other implementing state policy in the field of state control over compliance with labor legislation, remains unclear. Given that these are the same body, defining it with different wording leaves questions.

Of course, this is not all the information contained in the law. There are still many interesting and unspoken things in this legal field, such as penalties, but we will talk about this in the next article. The law has not yet been adopted and active discussions and revisions are still ongoing. We hope that the new law will bring the necessary positive changes for both business and the state. And while you are thinking over all the information above and waiting for the new law to be adopted, we can help you set up your occupational health and safety system to be ready for any innovations.