The New Occupational Health and Safety Act: How it affects employees and employers

When the Occupational Health and Safety Act was introduced in 1995, the legislation focused primarily on protecting workers from physical harm. However, with the evolution of technology and new ways of working, such as remote working, new environments and concerns have emerged that need to be reflected in the legislation. For this reason, a draft Occupational Health and Safety Act has been prepared. As specialist employment lawyers, we would like to examine the main changes proposed by the new legislation and their impact on both employees and employers.

Key changes in the new Occupational Health and Safety Act

The draft legislation proposes the following changes:

• Collective and individual health surveillance. Employers will be required to inform employees about both general workplace risks and the specific risks associated with each role, as well as carry out health assessments tailored to those risks. These assessments must be conducted at the start of employment, periodically throughout the employment relationship, and following any prolonged absence.
• New definition of "working conditions". The concept will no longer be limited to factors such as lighting or temperature. It will also include work organisation, social and interpersonal relationships, and other elements that may influence workplace risks.
• Adapting work to each individual. Rather than requiring employees to adapt to their role, employers will be expected to adapt each position to the individual carrying it out, taking into account their physical, psychological and biological characteristics.
• Inclusion of psychosocial risks in risk assessments. Under the current legislation, risk assessments mainly focus on physical hazards. The new legislation broadens their scope to include psychosocial and climate-related risks, among others.
• Limiting the employer's ability to personally carry out preventive duties. The new legislation restricts the circumstances in which employers may assume preventive responsibilities themselves and lowers the employee threshold requiring businesses to establish their own occupational health and safety service.
• Prevention of harassment and violence. Violence and harassment are defined as any behaviour, conduct or threat intended to cause, causing, or capable of causing harm to an employee's physical or mental health, whether occurring once or repeatedly. This also includes acts committed through information technologies (cyberbullying), the use of algorithms or artificial intelligence systems, as well as sexual harassment and gender-based harassment. In such cases, workplace risk assessments must be carried out in person at the workplace.
• Taking gender, age and diversity into account in occupational health and safety. For many years, personal protective equipment was designed around the male physique. Under the new legislation, it must be adapted to the characteristics of each individual. Protection for pregnant and breastfeeding employees will also be strengthened.
• Face-to-face training. Occupational health and safety training relating to a specific role must be delivered in person, unless there are justified and duly documented reasons preventing this. Generic online training will no longer be sufficient; training must focus on the specific risks associated with each role and be delivered face to face.

How will the new legislation affect employers?

The new legislation will require businesses to make a number of changes to their occupational health and safety procedures:

• They will need to implement risk management measures that address issues such as stress and anxiety, while also guaranteeing employees' right to disconnect, as provided for under the Workers' Statute and the Data Protection Act.
• They may be required to establish an in-house occupational health and safety service if they fall within the new thresholds.
• They must also introduce protocols for dealing with violence and harassment, including sexual harassment, as well as cases where harassment or violence is carried out through technology or artificial intelligence.
• Another important requirement will be to establish specific procedures for employees returning to work after a prolonged absence due to ill health.

Ultimately, the aim is to ensure that employees carry out their work in increasingly safe environments, not only from a physical perspective but also from an emotional and psychological one.

How will the new Occupational Health and Safety Act affect employees?

Employees will benefit from several important improvements to their protection against workplace risks:

• Their health protection will become more comprehensive. The focus will no longer be solely on preventing physical harm but will also include mental health and emotional wellbeing, providing a 360^o approach to protection.
• Their workplace and personal protective equipment will be adapted to their specific physical characteristics.
• Risks arising from climate change, such as extreme heat and damage caused by natural disasters, will also be taken into account.
• Occupational health and safety training must be provided in person.
• If they have been on sick leave for an extended period (more than six months), their return to work must be properly managed and any associated risks assessed.

What is the current status of the legislation?

The new Occupational Health and Safety Act has been approved by the Council of Ministers and must now begin the parliamentary process, passing through both the Congress of Deputies and the Senate before being officially published in the Official State Gazette.

Once the Act has been enacted, it will be further developed through implementing regulations to improve its practical application, particularly in relation to psychological and social risks.

Overall, this represents one of the most significant reforms to occupational health and safety legislation introduced over the past 30 years. Businesses should begin preparing now to adapt to the new requirements and provide greater protection for their employees in today's evolving working environment.

If you require advice or assistance with employment law, please do not hesitate to contact our team of specialist labour lawyers, who will be happy to assess your case and provide expert legal advice.