Society is immersing in constant changes whereby social and human relations are governed by labor activities and consequently those of Health and Safety. Change in technology; thinking manners; accessibility to media and electronic information, among others, does not permit us to stay still; therefore, society evolves, and consequently it is necessary to adapt the regulations that govern said relations with the purpose to maintain peace among individuals.
Regarding Labor, Health and Safety relations it is the work of the Ministry of Labor and Social Welfare ("STPS") to draft the mechanisms (Laws, Regulations, Standards, etcetera) through which said relations will be governed as well as to maintain same updated according to the necessities of the society as well as to inspect compliance of said laws with the purpose to guarantee the development of our country through the equilibrium of the production factors.
Derived from the above and as established in the Mexican Constitution, the Federal Labor Law ("LFT") and with the purpose to reach the objectives in the National Development Plan 2013 - 2018, this Regulation was published.
This New Regulations will impact the operation in the Mexican facilities since they are stricter for Employers to: a) have the conditions that can prevent hazard in the Workplace; and b) guaranty the workers their right to perform their activities in environments that ensure their life and health.
Within this New Regulations and corresponding NOMs, the amount of legal dispositions to be complied: i) Occupational Health Area are 107; ii) Safety Area are 168; and iii) Organization Provisions for both Occupational Health and Safety Areas are 62; therefore accounting for a total of 337 dispositions.
Mexico's New Federal Regulation of Occupational Health and Safety, effective throughout Mexico February 14, 2015, is of public order and social interest. It establishes provisions relative to workplace health and safety, to prevent hazards and to guarantee workers, within the framework of LFT, the right to perform their activities in environments that assure their life and health. Its application and enforcement oversight is responsibility of STPS, assisted for activities under state jurisdiction by the labor authorities of Mexico's states and the Federal District.
The Regulation introduces new concepts such as:
Assessment of workplace occupational health and safety, understood as identification of unsafe or hazardous conditions, physical, chemical or biological agents, and ergonomic or psychosocial risk factors affecting the conditions of the work environment and the associated dangers, as well as applicable legal requirements pertaining to occupational health and safety;
Favorable Organizational Environment, understood as a sense among workers of belonging to the organization, adequate training to perform their tasks appropriately, specific definition of individual responsibilities, proactive participation and communication among team members, adequate distribution of work responsibilities, with regular labor shifts, and promotion of evaluation and review of performance;
Ergonomic Risk Factors, understood as factors that may cause physical stress and repetitive movements or forced postures in work performed, with consequent fatigue, errors, occupational accidents and illness associated with design of facilities, machinery, equipment, tools or job position;
Psychosocial Risk Factors, understood as factors that from the work performed may cause anxiety disorders, non organic disorders of the sleep-wake cycle, and serious stress and adaption disorders derived from nature of the work, position or functions, the type of work shift and exposure to traumatic events or acts of labor violence;
Workplace, understood as places such as buildings, establishments, installations and areas where activities of exploitation, utilization, production, commercial distribution, transport and warehousing or rendering of services, are performed and those where individuals subject to a labor relation work;
Workers with Disability, understood as those who, for reasons congenital or acquired, present one or more deficiencies of physical, mental, intellectual or sensorial character, permanent or temporary; and,
Labor Violence, understood as acts of harassment, sexual harassment or bad treatment of a worker that may damage the worker's integrity or health.
The Regulation requires an Employer to:
- have an Occupational Health and Safety Assessment, as well as risk studies and analyses required by the Regulation and corresponding Standards;
- implement an Occupational Health and Safety program based on the Assessment;
- prepare specific programs, manuals and procedures, to guide performance of labor activities and processes, under safe and emergency conditions;
- promote establishment of a Health and Safety Commission and guarantee provision of Preventive Occupational Health and Safety Services in the workplace;
- include in visible workplace locations, warnings or signs and colors to inform, warn and prevent risks;
- conduct assessment, evaluation and control of workplace contaminants, to maintain workplace environmental conditions within exposure limits.
- apply the Occupational Health and Safety measures contemplated in the Regulation and the Standards.
- order medical examinations for occupationally exposed personnel as required by the Regulation and Standards;
- provide workers personal protective equipment commensurate with risks to which their work exposes them;
- inform workers of risks related to their duties;
- qualify and train workers on risk prevention and attention to emergencies;
- qualify workplace personnel serving on the Health and Safety Commission and the Occupational Health and Safety Preventive Services, and, when applicable, support updating them;
- obtain the authorizations for performance of hazardous activities or tasks detailed in the Regulation and specific Standards;
- maintain administrative records, printed or electronic, as the Regulation and Standards require;
- provide written or electronic notice of labor accidents, as well as work-related deaths, within 72 hours of knowledge of them;
- file notices related to pressurized vessels, cryogenic containers and steam generators or boilers, contemplated in the Regulation;
- maintain official documents, reports of results and compliance certificates in matters of occupational health and safety;
- supervise that contractors comply with occupational health and safety measures, when performing tasks within their installations; and,
- authorize and facilitate the Labor Authority's exercise of the duties of inspection and oversight.
Employee obligations include to:
- observe the preventive measures of occupational health and safety provided in the Regulation and Standards, as well as those established by employers;
- submit to medical examinations pursuant to the Regulation and Standards; and,
- participate in relevant qualification and training provided by the employer and its designees.
The Regulation establishes general provisions concerning safety in various matters, including:
- buildings, premises, sites, installations and work areas;
- fire prevention and protection;
- utilization of machinery, equipment and tools;
- handling, transportation and storage of materials;
- handling, transportation and storage of hazardous chemical substances;
- driving motorized vehicles;
- working at heights;
- working in confined spaces;
- containers subject to pressure, cryogenic and steam generators or boilers (To operate containers subject to pressure, cryogenic containers and steam generators or boilers covered by the Standard, an employer must give written notice to the STPS before operation that such equipment meets required safety conditions, together with certificate of conformity issued by an accredited and approved verification unit, as contemplated by the relevant Standard);
- static electricity and prevention of atmospheric discharges;
- welding and cutting activities; and,
- maintenance of electrical installations.
The Regulation establishes general provisions for workplace health in respect of:
- ionizing radiation;
- non-ionizing electromagnetic radiation;
- elevated or chilled thermal conditions;
- abnormal environmental pressures;
- chemical agents capable of altering health;
- biological agents capable of altering health;
- ergonomic risk factors (implicating employer preparation of analysis of ergonomic risk factors of relevant work positions and disclosures to employees); and,
- psychosocial risk factors (implicating to identify and analyze work positions with psychosocial risk based on nature of their functions or the type of work shift, and to identify workers subject to severe traumatic events or acts of labor violence, and evaluate them clinically, all with reference to: i) hazardous conditions inherent to a job; ii) performance under unsafe conditions; iii) demands for heightened responsibility or prolonged, intense consideration and attention.
Organizational requirements relative to occupational safety and health include the following:
- establish workplace Health and Safety Commissions;
- establish occupational health and safety preventive services;
- conduct an occupational health and safety assessment;
- provide preventive services of labor medicine;
- provide preventive services of occupational medicine;
- provide for selection and use of personnel protective equipment;
- provide occupational health and safety signs and identification of risks from fluids in piping;
- identify and communicate hazards and risks from hazardous chemical substances, including to have safety data sheets in Spanish (SDS or MSDS) available to workers for all hazardous chemical substances used in the workplace;
- safely organize critical processes and equipment where hazardous chemical substances are handled, and,
- promote a favorable organizational environment and prevention of labor violence, including employer definition of relevant policies.
Targeted subject matters for workplace health and safety include:
- Protection of Pregnant or Nursing Women–The provisions seek to protect the physical integrity and health of pregnant or nursing women, and the child, prohibiting assignment of a pregnant or nursing woman to perform various activities harmful to the pregnancy or nursing. Immediately upon knowledge of pregnancy, a woman performing such work must inform the employer so that the employer can temporarily re-assign the woman;
- Protection of Minors Workers–The Regulation seeks to protect the physical and health integrity of minor workers, from ages 15 through 18, with a maximum workday of six hours;
- Protection of Workers with Disability–In any workplace with a disabled worker, the employer must perform an analysis to determine the requirements of the relevant job. In workplaces of over fifty workers, the employer must assure facilities for disabled persons to perform;
- Field Workers–To protect physical and health integrity of field workers in agricultural, ranching, aquaculture, forest and mixed activities, an employer must provide safety instructions in the workers' language or dialect, or through graphic images and pictograms; and,
- Workplace Promotion of Health and Prevention of Addictions–The STPS will provide guidance on actions and programs to promote health and prevent addictions required as part of an Occupational Health and Safety Program, including by issuing and updating a Guide of Recommendations to Promote Workplace Health and Prevent Addictions.
Criteria are established to update the table of occupational illnesses and evaluation of permanent disabilities resulting from work risks, including with respect to eleven categories of illnesses labeled "Mental disturbances". Employers must notify within 72 hours, the STPS, in writing or electronically, of work accidents as defined by the LFT. Should the employer not do so, the employee, or if unable to do so, family members, should give the notice to the public institution of social security with which the worker is affiliated, and they may further notify the STPS.
The Regulation contemplates that STPS make available programs to employers to facilitate knowledge of and compliance with workplace occupational health and safety requirements, including those related to i) identification of relevant Mexican official standards; ii) identification and control of personal protection equipment; and iii) Programs for Self-Management of Occupational Health and Safety. Programs for Self-Management should allow voluntary participation and extend the possibility of such participation to the contractor companies that perform work related to the principal activities of the employer within the employer's facilities.
STPS may adjust the tabulation imposed in setting penalties and fines for violations to the provisions established in the Regulation. Potential fines currently range from 50 to 5,000 days of the general minimum daily wage in force in the Federal District, corresponding at recent exchange rates to: 3,505 pesos (approximately 250 dollars); 350,500 pesos (approximately 25,000 dollars).
Finally and from the review of the aforementioned new Regulations we can conclude that there are additional obligations that will have to be complied and a "diagnostic" would need to be performed in each workplace to determine how many will apply. Those Employers that not comply with the Regulations will be imposed higher sanctions than the ones established in the abrogated Regulations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.