medidas prevención

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Key health and safety measures and consequences of non-compliance

From Monday April 13, many companies (not affected by the suspension of business activity under Royal Decree 463/2020, of March 14, on the state of emergency, but affected by the restriction under Royal Decree-Law 10/2020, of March 29) will resume trading, with employees returning to the workplace.  Health and safety measures are essential to reduce the risk of (i) infection and, therefore, company liability; and (ii) workers, their legal representatives or the Social Security and Labor Inspectorate bringing the business activity to a halt

Under the Procedure for health and safety services against exposure to the new Coronavirus, companies must implement the collective or individual preventive measures indicated by the inhouse or external health and safety service, following the guidelines and recommendations of health care authorities (see the Guidelines for acting in the workplace in relation to the new Coronavirus by the Ministry for Labor and Social Economy).

Below we summarize the key health and safety measures that come into force today to combat COVID-19:

1. Companies must train and inform employees on and about the appropriate health and safety measures for their workstation, and not assume that they are publicly known and, therefore, understood. 

2. The main preventive measure is that companies must ensure that employees keep a distance of at least two meters in the workplace. This is no simple task, and means considering the following, depending on the nature of the workstation:

  • If the workstation is static, the specific workspace where each employee works can be ring-fenced or signposted, to respect the safety distance wherever the employee may be located as he or she works.  
  • If the workstation is dynamic (as it may be for cleaners, and maintenance and warehouse staff), measures will be considered including limiting the number of workers in a single area at the same time, allocating specific times for each worker to perform an activity, or marking internal traffic lanes for workers to follow. 
  • Potential measures in common areas (.g., bathrooms, dressing rooms, corridors and entrances) include: (a) limiting the maximum permitted capacity based on the size and contents of the space, and the anticipated location of workers; (b) staggering workers’ start and end times to spread out footfall; (c) encouraging the gradual use of common areas and a one-in-one-out policy in smaller areas; (d) in transit areas such as corridors, where wide enough, setting out separate lanes of traffic with at least a two-meter safety distance, marked with paint, tape, stickers (that are non-slip and resistant to wear and tear and cleaning) or beaconing. If the area is too small for those set-ups, there should be a one-way system wherever it is possible to complete the route in the opposite direction somewhere else.  If none of the measures are possible, companies will inform employees of the importance of keeping at least two meters apart and avoiding passing each other when moving around. 

3. Companies must implement the following hygiene measures in the workplace:

  • Carry out regular checks of ventilation. 
  • Carry out extra cleaning of air filters and increase ventilation through air conditioning systems.
  • Carry out extra cleaning of the whole premises, particularly surfaces that are more frequently touched (door knobs and frequently used equipment such as computers and keyboards). 
  • Clean work areas at the end of each shift. 
  • Wash work uniforms at between 60 and 90 degrees.

4. Companies must remind workers to wash their hands regularly and observe other hygiene measures, and provide them with the means to do so.

5. Companies must supply personal protective equipment, in the form of masks, gloves and suitable uniform, as appropriate. Any such equipment must be certified in line with Regulation (EU) 2016/425 or Royal Decree 1591/2009.

The Labor Court of Las Palmas de Gran Canaria issued an order on March 30, 2020, appeal no. 339/2020, ordering a company to provide its employees with masks, antibacterial gel, gloves and disposable gowns within 48 hours. Paradoxically, the Labor Court of Santa Cruz de Tenerife issued a contrary order on March 23, 2020, appeal no. 276/2020, dismissing the application made by labor authorities to ensure masks for all employees of a company providing home care services for the Santa Cruz de Tenerife city hall.

6. Elsewhere it is mentioned that an employee appearing to be showing signs of suffering from COVID-19 (but without exhibiting symptoms and with no isolation order from the health authority) must be immediately referred to the prevention service for a health check (e.g., temperature), for the employer to safeguard the health of other employees and any external persons. 

7. Although health information must be kept confidential, if there are any confirmed cases of the virus in a company, steps must be taken to protect the workforce, such as by rolling out remote working wherever possible. The prevention service will be responsible for establishing how to investigate and trace close contact, in conjunction with the public health authorities and in line with the definition of close contact in the Procedure to deal with cases of the new Coronavirus (SARS-COV-2).

8. Prevention services must identify any especially vulnerable workers, establish the nature of their vulnerability and draw up a report on prevention, adaptation and protection measures for them. The Procedure for health and safety services against exposure to the new Coronavirus identifies especially vulnerable workers as those suffering from diabetes, cardiovascular disease, including hypertension, chronic pulmonary disease, and people who are immunodeficient, suffering from cancer and undergoing treatment, pregnant women and the over 60s.

Companies must prove that they have introduced reasonable preventive measures to limit public liability (criminal, administrative or social security surcharges) and private liability (damages). Even if there is no harm to the employee, not adopting preventive measures could result in criminal or administrative liability for  companies. Therefore, it is advisable to document all these matters in a company policy that is adapted to the circumstances of the company and updated regularly. 

If safety measures are breached, employees, their legal representatives or the Social Security and Labor Inspectorate could shut down the business based on an imminent and serious health risk. Another option for companies is to implement a temporary redundancy plan on the grounds of force majeure, provided the inhouse or external prevention service has found there to be a health risk to the workforce and no possibility of implementing the required preventive measures.  

It seems clear that as lockdown measures are gradually relaxed and companies become operational again, inhouse health and safety measures will increasingly be a key mechanism in establishing a balance between flattening the infection curve and resuming business and employment activities, both of which are so essential. 

Authors: Jennifer Bel and Marc Paris

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Abogada del Área de Conocimiento e Innovación de Cuatrecasas. Profesora colaboradora en ESADE