In the following post we will address a complicated topic that we consider important, especially from the employer’s point of view. We are often asked: what can I do if my worker does not want to use the fall protection equipment I have provided?.
Below we explain the obligations and rights of employer and worker, and we offer different solutions in case the worker fails to meet their duties.
Employer Obligations and Worker Rights Under OHS Rules
The employer’s obligations are clearly set out in our legal system, from the Constitution (Article 40.2) to the Workers’ Statute. Both specify that workers have the right to effective protection in matters of occupational safety and health.
To meet the duty of protection, the employer must guarantee the safety and health of the workers in their service in all aspects related to work.
To this end, within the framework of their responsibilities, the employer will carry out occupational risk prevention by integrating preventive activity into the company and adopting whatever measures are necessary to protect workers’ safety and health, such as:
- Drawing up the prevention plan
- Risk assessment, information, consultation, and participation.
- Worker training
- Action in emergencies and in cases of serious and imminent risk
- Health surveillance
As it could not be otherwise, there is a correlation between the employer’s obligations and the workers’ rights.
The rights mentioned above form part of workers’ right to effective protection in matters of occupational safety and health.
Worker Obligations Under OHS Rules
Workers have not only rights but also a number of obligations in preventive matters. Article 19.2 of the Workers’ Statute establishes that workers are required to observe the legal and regulatory safety and hygiene measures in their work.
Article 29 of Law 31/1995 on Occupational Risk Prevention also sets out workers’ obligations in preventive matters.
What Article 29 of Law 31/1995 of November 8 on Occupational Risk Prevention says:
1. It is each worker’s responsibility to look after, to the extent of their ability and by complying with the prevention measures adopted in each case, their own safety and health at work and that of other persons who may be affected by their professional activity, because of their acts and omissions at work, in accordance with their training and the employer’s instructions.
2. Workers, in accordance with their training and following the employer’s instructions, shall in particular:
| Use properly, in accordance with their nature and foreseeable risks, machines, apparatus, tools, hazardous substances, transport equipment and, in general, any other means with which they carry out their activity. |
| Correctly use the protective means and equipment provided by the employer, in accordance with the instructions received from the employer. |
| Not disable, and correctly use, the safety devices that exist or are installed on the means related to their activity or in the workplaces where it takes place. |
| Immediately inform their direct superior, and the workers designated to carry out protection and prevention activities or, where applicable, the prevention service, about any situation that, in their judgment, involves, for reasonable grounds, a risk to workers’ safety and health. |
| Contribute to the fulfillment of the obligations established by the competent authority in order to protect workers’ safety and health at work. |
| Cooperate with the employer so that the employer can guarantee working conditions that are safe and pose no risks to workers’ safety and health. |
3. Failure by workers to comply with the risk prevention obligations referred to in the preceding paragraphs shall be considered a breach of employment duties for the purposes of Article 58.1 of the Workers’ Statute or, where applicable, misconduct under the corresponding regulations on the disciplinary regime of public officials or statutory personnel in the service of public administrations. The provisions of this paragraph shall equally apply to members of cooperatives whose activity consists of providing their work, subject to the clarifications established in their Internal Rules.
Failure to Comply with Worker Obligations Under OHS Rules
The employer must be clear that workers’ failure to comply with their prevention obligations will be considered a breach of employment duties for the purposes of Art. 58.1. That provision states:
1. Workers may be penalized by company management for breaches of employment duties, in accordance with the grading of misconduct and penalties established in legal provisions or in the applicable collective agreement.
2. The assessment of misconduct and the corresponding penalties imposed by company management shall always be reviewable by the social jurisdiction. Penalizing serious and very serious misconduct shall require written notice to the worker, stating the date and the facts that justify it.
3. Penalties consisting of a reduction in the length of vacations or any other curtailment of the worker’s rest rights, or a fine deducted from pay, may not be imposed.
Going back to the example we gave at the beginning of the post, when there is a risk of falling from height that cannot be avoided through collective protection, appropriate personal protective equipment must be used and, therefore, its use is mandatory for the worker, with such non-compliance being considered a serious or very serious violation.
In short, the employer has tools available if workers fail to meet their obligations, including those arising from the coordination of preventive activities when several companies are involved at the same workplace, and these consist of applying what Royal Legislative Decree 2/2015 of October 23 says, approving the consolidated text of the Workers’ Statute Law.