Prevention is understood as the set of activities or measures adopted or planned in all phases of a company's activity in order to avoid or reduce risks arising from work.

Occupational risk is understood as the possibility that a worker may suffer a certain injury resulting from work.

Work-related damages are considered to be illnesses, pathologies or injuries suffered due to or in connection with work.

ACCESS TO THE TOOL TO REQUEST A BUDGET FOR PREVENTION

The following situations are considered occupational accidents:

• The suffering that occurs during the journey to or from work.

• Those suffered by workers holding elected positions of a trade union nature.

• Those that occur while carrying out tasks ordered by the employer or spontaneously in the interest of the proper functioning of the company.

• Those that occurred in rescue operations.

• Diseases contracted while performing work.

• Illnesses that worsen as a result of a work-related injury.

• Psychological injuries suffered by workers during and at the workplace, such as work-related stress, psychological exhaustion, and workplace bullying.

Companies must comply with occupational risk prevention regulations to protect the health and working conditions of their employees. Therefore, in most cases, the best solution is to hire an external Occupational Risk Prevention Service (SPA). 

To avoid sanctions from the Labor Authority, it is not enough to simply hire this SPA; the company must also diligently implement the recommendations and improvements that the prevention service will propose in its periodic evaluations and reports.

It is mandatory that, on the day a new employee joins your company and before they begin work, they attend your SPA to undergo the corresponding medical examination and receive mandatory training and information on prevention.

Every business owner must immediately notify their SPA of any changes made within the company; the following are examples: 

• Change of machinery.

• Renovation of the facilities.

• Opening of a new workplace.

• Incorporation of new workers.

• Hiring of minors.

• Pregnancy of female workers.

• Hiring night shift workers.

• Changes in work systems (for example: moving from in-person work to remote work; implementing a shift work system; category changes, etc.).

• Incorporation of an employee who has been on sick leave for more than one month, as well as an employee who joins the company after being discharged following a work-related accident that may have impaired their abilities in relation to their job.

It is very important to inform your SPA of any changes in the number of employees that may occur in your company, and especially the complete cessation of company activity, so that the prevention service ceases to provide its services and does not continue to bill you improperly.

Spas are required to inform their clients, through the service provision agreement/contract signed by the parties, of the preventive specialties/activities excluded from the agreement but whose compliance may be legally enforceable. We recommend that our clients contact their Spas to verify whether there are, in fact, preventive activities excluded from their agreement, which may therefore generate labor, administrative, civil, or criminal liability, in order to implement the corresponding corrective measures, if applicable.

In detail the obligations are:

Adopt a preventive organizational model in the company

Risk prevention will be carried out in the company, through one or more of the following organizational modalities:

The employer may directly carry out preventive activities when the conditions established in Article 11 of Royal Decree 39/1997, of January 17, approving the Regulations on Prevention Services (RSP), are met. Health surveillance must be arranged with an external Prevention Service.

Through designated workers, who may carry out preventive activities. The conditions and requirements for adopting this modality are established in Articles 12 and 13 of the RSP. Health surveillance must be arranged with an external prevention service.

Through one or more External Prevention Services, which must be used whenever the preventive activity is not carried out with internal resources or these are insufficient. The situations in which this method must be used are established in Article 16 of the RSP.

By establishing an Own Prevention Service, in those cases and under the conditions established in articles 14 and 15 of the RSP or through a Joint Prevention Service according to article 21 of the RSP.

Develop an occupational risk prevention plan

An occupational risk prevention plan must be developed and implemented, the content of which is detailed in Article 2.2 of the RSP.

However, for companies with fewer than 50 employees and not engaged in hazardous activities, this plan can be simplified by submitting it together with the risk assessment and preventive activity planning in a single, concise document.

Assess risks and plan prevention

Risk Assessment and Preventive Activity Planning must be carried out.

Train and inform workers

Workers must be informed and trained about their occupational risks and the measures or activities to prevent them, especially in emergencies and in the event of serious and imminent risk. The obligations regarding worker information and training are set out in Articles 18.1 and 19 of the LPRL, respectively.

Consultation and participation of workers

The employer must consult with workers, or their representatives, on all matters affecting their safety and health at work, allowing their participation.

Workers may be represented by the Health and Safety Committee (link to the corresponding section) and the Prevention Delegates (link to the corresponding section), or by the Works Council and the Personnel Delegates. The consultation and participation obligations are set out in Article 18.2 of the LPRL.

Monitor the health of workers

The employer shall ensure that the health status of its employees is monitored based on the risks inherent to their work, when they begin work; after being assigned tasks with new risks; after a prolonged absence for health reasons; and periodically when determined based on the job risk assessment.

As a general rule, health surveillance will be carried out by an external prevention service and in all cases will comply with the provisions of Article 22 of the LPRL.

Coordinate business activities

When employees from two or more companies, including self-employed workers, carry out activities in the same workplace, they must cooperate in the application of occupational risk prevention regulations through appropriate coordination of business activities.

The way to carry out all of the above is regulated by Royal Decree 171/2004, of January 30, which implements Article 24 of the Occupational Risk Prevention Act.

Take action in case of emergency

The obligations regarding emergency measures are set out in Article 20 of the LPRL. The emergency measures we adopt must be directed toward:

• Providing first aid

• Firefighting

• The evacuation of workers and others affected

Investigate health hazards (workplace accidents and occupational diseases)

When a worker's health is harmed, an investigation must be conducted to identify the causes and address them.

Furthermore, the employer is required to notify the labor authority in writing of any work-related health injuries, as indicated in Article 23 of the LPRL.

Document preventive activities

At a minimum, the documentation relating to prevention management indicated in Article 23 of the LPRL must be prepared and kept available to the labor authority.

Protecting at-risk groups

Specific prevention and/or protection measures must be adopted, especially for:

• Workers who are particularly sensitive to certain risks (Article 25 of the LPRL).

• Motherhood (article 26 of the LPRL).

• Young people under 18 years of age (article 27 of the LPRL).

It is a preventive tool used to identify, for each job in the company, the risks that could not be avoided, their magnitude, and the affected workers. 

Once this assessment is completed, you will have the necessary information to adopt preventive measures that improve your company's health and safety standards. 

This assessment will be reflected in a document that will form part of the Risk Prevention Plan. When conducting the risk assessment, the employer must take into account the nature of the activity, the characteristics of the existing jobs, and the workers who will be required to perform them. 

This is a management document in which the business owner must reflect the preventive activities to be carried out to eliminate, reduce, or control the risks revealed by the results of the risk assessment.

This document will reflect, for each preventive measure, the timeframe for its implementation, the person responsible for carrying it out, and the human and material resources that will be used. 

As an employer, you may personally carry out prevention activities, with the exception of activities related to monitoring the health of workers, when the following circumstances apply to your company:

• That your company has up to ten 10 workers.

• That the activity you carry out in your company is not considered hazardous and, therefore, is not included in Annex I of Royal Decree 39/1997, of January 17, which approves the Regulations on Prevention Services.

• That you regularly carry out your professional activity at your company's workplace and

• Have training in occupational risk prevention, at least at a basic level.

The company must comply with regulations on occupational risk prevention to protect the health and working conditions of its employees. To do so, it may undertake this itself or hire a prevention service outside the company (SPA).

In most cases, the best solution is to hire an external Occupational Risk Prevention Service (SPA). 

In detail, the prevention compliance modality can be fulfilled by:

• You personally.

• Your designated workers.

• The preventive service(s) you have contracted. (SPA)

• Your own prevention service.

To avoid sanctions from the Labor Authority, it is not enough to simply hire a SPA; the company must also diligently implement the recommendations and modifications that the prevention service will propose in its periodic evaluations and reports. 

External prevention services must directly assume the development of the following functions, provided that they have been agreed upon in the contract signed between the company and the external prevention service:

• Design, implementation, and application of an occupational risk prevention plan that allows for the integration of prevention into the company.

• The evaluation of risk factors that may affect the safety and health of workers.

• Planning preventive activity and determining priorities in the adoption of preventive measures and monitoring their effectiveness.

• Information and training for workers. Regarding worker training, external prevention services must demonstrate their training capacity through a sworn statement to the competent labor authority.

• Providing first aid and emergency plans.

• Monitoring workers' health in relation to work-related risks

It is the obligation of SPAs to inform and comply with their clients regarding the content of the service agreement/contract signed by the parties, with special attention to the preventive specialties/activities excluded from the agreement but whose compliance may be legally enforceable. We recommend that our clients contact their SPAs to verify whether there are indeed preventive activities excluded from their agreement and which, therefore, may generate labor, administrative, civil, or criminal liability, in order to implement the corresponding corrective measures, if applicable.

Every employer must immediately notify their SPA of any changes made within the company, including: changes in machinery; renovation of facilities; opening of a new workplace; hiring of new employees; hiring of an employee who has been on temporary disability for a long period, or hiring an employee who has been discharged following a work-related accident that may have impaired their abilities in relation to their job; hiring of minors; pregnancy of female employees; hiring of night shift workers, etc.

It is very important to inform your SPA of any changes in the number of employees that may occur in your company, and especially the complete cessation of company activity, so that the prevention service ceases to provide its services and does not continue to bill you improperly.

The Law on Violations and Sanctions in the Social Order establishes sanctions for preventive non-compliance, the amounts of which will depend on the severity, number of employees affected, recurrence, and other factors.

The initial medical examination is always mandatory for both the company and the employee. Therefore, on the day a new employee joins your company, after being discharged and before actually starting work, they must attend your SPA to undergo the corresponding medical examination and receive the necessary training and information on risk prevention. 

Another issue is the subsequent periodic medical examination, which will be mandatory or voluntary for the worker depending on the type of activity, whether it is established by the collective bargaining agreement, or the type of worker. In any case, your prevention service must inform you whether the examination is voluntary or mandatory.

In short, examinations will be mandatory when there is a risk of occupational disease. Furthermore, they cease to be voluntary when the examination is necessary to assess the effects of the workplace on the worker's health, when the worker's health condition may be considered a risk to themselves or other workers, or when a legal provision establishes a specific risk.

A medical examination of workers consists of making a comprehensive assessment of their health status, defining their physical and mental capacity or incapacity, with a view to adapting the worker to their job and, at the same time, preventing any deterioration in their health that may be due to said work. 

The occupational physician will send the employer a brief report in order to consider the worker:

• SUITABLE: For the job for which the worker has been tested.

• SUITABLE WITH LIMITATIONS: When modifying part of the functions inherent to the job that are not essential for it, the worker can be qualified.

• NOT SUITABLE: For the job.

This is a complement to the report on the results of the examination.

This report is basically prepared when the worker joins the company or a new job and has characteristics of confidentiality and professional secrecy.

This report aims to ensure that the performance of work cannot be detrimental to the worker's health and safety.

When preparing the fitness report, the physician must have a vision of the present but also of the future, and assess the repercussions that an unsuitable job could have on the health of the workers. Therefore, the more difficult and risky the job being undertaken, the more carefully considered the fitness criteria should be.

This is a very sensitive issue. Typically, before issuing the certificate, the specialist informs the company that the employee assigned to a particular position is unfit to perform it.

If it is an initial medical examination, during the worker's trial period, the employer must decide whether to extend the contract by looking for a suitable position for the worker, and must inform the occupational physician about this to ensure that the new position is suitable for the worker, or, on the contrary, may decide not to extend the contract.

If it is a periodic medical examination, the doctor will inform the employer of the situation, and the employer must, as indicated in Article 22 of the Occupational Risk Prevention Act, try to adapt the job to the worker's limitations, or, if this is not possible, find a compatible job to relocate the worker, informing the doctor about the characteristics of this new position.

The worker will begin performing the new job, which they will continue to do as long as the health conditions that led to their "unfitness" persist.

In the latter case, the doctor will issue a fitness report for the new position.

However, it may happen that the company does not have a suitable job for the worker, and this is where the problem really begins.

In these cases, the company must issue a certificate indicating the situation and attach it to the doctor's fitness report, allowing the company to terminate the employee's contract.

This worker will become unemployed. If the worker has contributed enough contributions, they can apply for the corresponding disability benefit, but if they haven't contributed enough, they will remain unemployed.

These events are giving rise to countless lawsuits in which workers seek to have their fitness certificate revoked, suing the doctor or the prevention service that issued the negative report. Most of these lawsuits ultimately side with the specialist, as their sole interest in issuing the unfitness certificate is none other than protecting the worker's health and safety.

Socially, this fact seems to harm the worker, and in some ways he is actually harmed by losing his job. However, this cannot influence the doctor, since he cannot sign a pass on a report that is not a pass, since then he would not only be putting the worker's job at risk, but something more important, such as his health and safety, at risk.

Furthermore, this does not mean that the worker will be unemployed for life. This person can continue looking for work and find a position in another company where they are guaranteed these fundamental rights enshrined in the Constitution itself: the right to work and health.

There are several turning points in an employee's career at a company where a medical examination is recommended (or required).

• At the start of the employment relationship. To ensure the employee's health.

• When returning to work after prolonged absences. Whenever an employee's health has been affected, the company may require them to undergo an examination to ensure their good health and that of their colleagues.

• When changing jobs within the same company. Whenever there are specific health risks.

• Periodic check-ins. This depends on each employee's position. It can vary from once a year to even every three years.

It's worth mentioning that whenever a professional activity involves health risks after a while, the company will continue to offer the former employee the opportunity to undergo a medical examination.

This must always be done during working hours. If the employee is called outside of working hours, the company is obligated to compensate for this time.

As a general rule, examinations consist of questions about the worker's health and a general physical examination. In addition, vision and hearing tests are usually performed, along with blood and urine tests and, in some cases, an X-ray examination. As we have mentioned, this is a general assessment, since in jobs where there is a real health risk, the worker's progress will need to be assessed.

What must be clear is that it cannot go beyond what is strictly necessary. Therefore, more private examinations will not be performed during an occupational medical examination.

The employer will only receive a document stating whether or not the employee is suitable for the position. This is important to ensure, as medical examinations are protected by the confidentiality required by the Organic Law on Data Protection. 

• The Occupational Risk Prevention Plan

• The assessment of risks to safety and health at work and any studies that are necessary according to the risks.

• Planning of preventive activity.

• Documentation proving the training and information provided to employees (signed attendance records, training content). 

• Proof of delivery of Personal Protective Equipment (PPE), if applicable.

• Minutes of the meetings of the Health and Safety Committee or prevention delegate (if applicable).

• Documentation relating to the chosen preventive modality (agreement with SPA, appointment of designated workers, etc.). 

• Carrying out health checks on workers and drawing conclusions from them.

• List of occupational accidents and occupational diseases that have caused the worker to be incapacitated for more than one day's work (Article 23 of the LPRL). (Accident investigation record).

In principle, no, but case law has established that refusal to provide a copy of the documentation to an employee who requests it could be indicative of a breach of labor law by the company. Safety representatives must also have access to the aforementioned information and documentation. 

Self-employed workers who do not have employees under their care are not required to have a preventive organization, as they are outside the scope of the Prevention Law.