All employers should be aware of the requirement to prepare a risk assessment. Whether all employers have prepared it properly and it complies with the requirements is a different matter. At the end of 2020, numerous amendments were introduced in the Occupational Health and Safety Act (hereinafter OHSA) with a view to facilitating communication of institutions and undertakings with the state, offering new services by the state and increasing also accountability of employers and employees in the working environment. One of the new services offered by the state is the working environment database (https://iseteenindus.ti.ee/login) created on 01 March 2021. In connection with this, the main modification for the employer was the obligation to prepare a risk assessment of the working environment in the working environment database or to send a risk assessment in a form reproducible in writing to the Labour Inspectorate.
When was the risk assessment due?
The due date for submitting a valid risk assessment which was prepared before the creation of the database and which did not need any updating to the working environment database or for sending it to the Labour Inspectorate was 01.09.2021. As it is the task of the employer to submit a risk assessment, the Labour Inspectorate may initiate supervision proceedings in respect of the undertaking in case of violation of the obligation. Therefore, we strongly advise you to make the preparing or updating of the risk assessment as well as its submission your top priority.
When is it necessary to update the risk assessment?
According to OHSA, when preparing a risk assessment of the working environment, an employer shall ascertain working environment hazards, measure their parameters as necessary and assess the risks to the health and safety of employees. A risk assessment needs to be updated, for example, when the working environment has significantly changed or when new significant hazards appear. Over the last year and a half many employers have been forced to rearrange their work to enable more flexible working conditions for employees, including new working environment in the form of a home office. And the widespread of the SARS-CoV-2 virus is a new biological hazard that employers have to consider. Potential mandatory vaccinations and the obligations of employers under the amendments to the regulation which entered into force on 17 August 2021 (Occupational health and safety requirements for working environments affected by biological hazards) are currently topical issues. The potential measures to be taken must be set out in the risk assessment. Therefore, updating of the risk assessment is currently especially relevant – not only to identify health hazards, but also to plan concrete actions to prevent or reduce the impact of the hazards on the health of employees.
How to make a risk assessment?
For many undertakings, preparation of a risk assessment primarily means a burden in terms of time and money, and it is often made just to comply formally with the requirement. In many cases undertakings lack skills or samples on the basis of which to prepare a risk assessment that is suitable for the given undertaking. The new digital tool in the self-service environment of the Labour Inspectorate helps solve this problem. The risk assessment module suggests various hazards as well as measures for preventing and reducing concrete hazards, beginning with overall concerns with the working environment and continuing with the specific hazards based on the area of activity. This tool serves as a structured assistant to the employer upon preparing a risk assessment, and the employer has an opportunity to involve its team to analyse various work processes in the undertaking and raise awareness of potential hazards in the entire undertaking by assessing the hazards together. If you have any questions about the use of the risk assessment module or you feel that you need any advice, you can also contact Leinonen legal advisors at any time.
There is also an option to outsource the preparation of the risk assessment as a whole to a provider of the relevant service and then upload the digital document in the self-service environment of the Labour Inspectorate. In such case, the employer can be sure that the methods used for assessing and documenting risks upon preparing the risk assessment are up-to-date and correspond to the latest consistent practices. Furthermore, an outsider may also identify such hazards that cannot be seen as such by people working at the undertaking every day.
What kind of penalties are there for the lack of a risk assessment?
Although the imposition of a fine is not prescribed for the lack of a valid risk assessment, it is a breach of the employer's obligation and on the basis of this, supervision proceedings may be initiated. The Labour Inspectorate is competent to impose a non-compliance levy as a means for enforcing compliance. The upper limit of the non-compliance levy is 9600 euros under the current Law Enforcement Act. But it may cost many times more for an employer if found in breach of the requirements established by OHSA under which a fine of up to 32,000 euros can be imposed on the employer as a legal person. Our experience so far has shown that the potentially involved monetary obligations serve as an adequate motivator for many employers to prepare and update the risk assessment. By means of the amendments that have entered into force, the legislator is seeking to raise the employers' awareness and capabilities in complying with the occupational health and safety requirements, enabling employers to comply with the occupational health and safety requirements by means of the tools it offers on a national level.
If you want further advice on this topic or you need assistance on a specific legal matter, please feel free to contact Leinonen legal advisors who are always ready to help you so that your undertaking can focus on the matters related to the principal activity.
Author: Keiu Rebane
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