ETUC note on violations of OSH regulations in returning to the workplace

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The Covid-19 pandemic is the biggest health, economic and social challenge in the history of the European Union. Numerous European and national measures have been implemented to fight the spread of the Covid-19 virus, also including those appertaining to workplaces and commuting to work.

The ETUC, with the help of its affiliated organisations, has reported extensively about these measures in its Covid-19 watch briefings: https://www.etuc.org/en/publication/covid-19-watch-etuc-briefing-notes.

The success of the EU exit strategy and the prevention of a second wave depend on reaching agreements between the social partners on work organisation with a strong attention to occupational safety and healthy.

In many European countries there is now a gradual reopening of workplaces. With this information note, we try to get a picture of the violations of Occupational Safety and Health regulations and the trade union response, e.g. industrial action, report to the labour inspectorate, revision of collective agreements, or other actions. The objective of this exercise is twofold: to provide information to ETUC affiliates on OSH development in different European countries, and to collect evidence in order to apply pressure on EU institutions regarding the need for enforcing OSH regulations, especially in the light of the pandemic.

The cases collected by ETUC affiliates so far comes from Austria, Denmark, Ireland, Slovenia, Spain, Sweden, UK and EFFAT.

Austria. ÖGB reported concerns on psychosocial risks steaming from work overload after returning to work. According to the union, occupational health and safety specialists have not been sufficiently involved in the implementation of protective measures against Covid-19 at workplace level. To respond to these challenges and others related to the safety and health of workers in the framework of the exit strategy, the Austrian labour inspectorate carried out a consultation in May and June aiming at providing support to employers to implement protective measures against Covid-19. As part of this campaign, 1010 companies from different sectors were visited (above all food and drink production, waste disposal, wholesale, retail, storage, postal services, and call centers, among others). Special attention was given to those sectors which are characterized by a higher geographical density of employees. The campaign assessed hygiene procedures, ventilation of work rooms, emergency planning, conditions of shared accommodation, and staff commuting to workers. The results were generally positive in the sense that only 20% of the companies were instructed to improve the health and safety regulations. Also, best cases were identified (the results of this study are available at: https://www.arbeitsinspektion.gv.at/Gesundheit_im_Betrieb/Gesundheit_im_Betrieb_1/ Beratungsoffensive_COVID-19.html).

Denmark. FH reported about the following cases of violation and the trade union response:

  • The labour inspectorate has issued an improvement notice with a very short deadline (7 days) to a hospital ward that deals with lung-infectious diseases and since 15. March 2020 have been treating patients with COVID19. At that ward, 60 % of the staff has been infected with COVID19 and a nurse assistant died from it. The labour inspectorate found that the prevention measures taken were not sufficient in terms of equipment, working environment and organisation, and social distancing.
  • The labour inspectorate has issued improvement notices to some private clinics (also with a 7-day deadline for the employers to observe the requests) on the grounds of poor hygienic conditions, improper reuse of protective equipment and lack of time between patients to disinfect and clean the working environment. • Poor hygiene and insufficient cleaning in the Danish Army’s premises. Cleaning in the army is outsourced, and the cleaning standard was already poor prior to the corona outbreak.
  • Improper use of hazardous substances for cleaning at a school, with no instructions and training given and no use of the correct PPE. As a result, workers got breathing problems, as the substances were administered with aerosols (and not directly in the surfaces to be cleaned). 
  • Pedagogical staff at day-care facilities and in schools report that no extra resources were provided to perform the extra tasks they have been asked to perform due to COVID 19. 40% of this staff believes that it is not possible to apply the guidelines provided by the health ministry and at the same time perform their job. Some workers report that they have no or very limited opportunities to take breaks when working. There has been a misunderstanding from some public employers (local authorities) concerning the respect of worktime regulations in the framework of the pandemic. A public statement between the trade unions of the public sector and the public employers was issued to clarify that no further exemptions from work time agreements already in place were needed. Middle managers in these sectors have also been working under great stress during this period. The activities performed outdoors in these centres have led to ergonomic injuries to the workers.

The trade union responses to this situation has been the following:

  • FH affiliated organisations have contacted the labour inspectorate in individual cases. No industrial action was undertaken. The unions have provided guidelines and personalised help through hotlines, dedicated sections in Internet and publications.
  • The unions have also developed sectorial guidelines together with the employers, using the existing system of cooperation on workplace targeted OSH communication by the social partners (the sector councils on OSH – “branchearbejdsmiljøråd”)
  • FH has asked for the setup of a national taskforce on COVID 19 and OSH consisting of the social partners, the ministry of occupation, the labour inspectorate, and the health authorities. The task force has been meeting every week since the beginning of May. The task force has been developing and initiating guidelines to different sectors as well as general guidelines to all workplaces and employers on how to deal with OSH and the corona situation. The task force is also working on guaranteeing risk prevention for migrant workers in the light of the Covid-19 pandemic.
  • FH has pushed for the labour inspectorate to perform inspections sur lieu. At first, the labour inspectorate was considered as non-essential public workers. The Confederation has played specific attention to workers in the health sector and the care sector. Paradoxically, these were the very sectors the labour inspectorate had almost completely exempted from their missions (only reacting to serious accidents and serious complaints).
  • As an outcome of the trade union work, the labour inspectorate has since the beginning of June been back on duty and performing the work in the field. The number of inspections is however still limited in the health sector and the care sector.

Ireland. Ireland has had a relatively slow and phased return to work, with significant numbers not returning to work until June 29th, as part of Phase 3 of economic and social re-opening. A further final phase is scheduled to commence from July 20th. It is still public policy that as many people as possible should continue to work from home and the government has launched a public consultation on home-working that ICTU will be engaged with.

During the early stages of the crisis, the position of the national Health and Safety Authority was that this was a public health crisis rather than an occupational health matter. Following pressure from ICTU through high-level social dialogue machinery, the government agreed that unions, employers and the state should together produce an agreed plan for the eventual return to work. This commitment resulted in the development of the “Return to Work Safely Protocol” as a tri-partite document that the state adopted as a mandatory basis for any return to work. The HSA suffered significant cuts in funding during the years of austerity in Ireland. While funding has improved slightly in recent years, OSH remained not to be a priority and workplace inspections were halved over a 10-year period. It was revealed before a parliamentary committee that the HSA had only 109 inspectors, 67 of whom were assigned to carry out Covid-19 inspections. Clearly, this was deemed to be wholly inadequate. Arrangements have now been made therefore for a further 500 inspectors from various other state agencies with an inspectorate role (e.g. labour law, environment, agriculture etc.) to assist with Covid19 inspections in the workplace.

According to the HSA, over 2,750 inspections had taken place up to the beginning of July. Across the range of sectors inspected, the overall findings were that 92% of workplaces had Covid-19 control measures in place, 85% of employees had received induction training, in 74% of workplaces a Covid-19 response plan was being prepared and in 70% of workplaces a Covid-19 worker representative had been appointed. Rates of compliance were high in construction, retail and manufacturing, but lower in transport/storage and administration.

ICTU set up a complaints procedure whereby workers can contact Congress and/or their union to highlight breaches of the protocol. Systems of contact have also been agreed with the HSA to report difficulties. Whereas the reporting systems are still in their early stages and not much significant data has yet been collected, the feedback from unions in relation to the implementation of the protocol has been largely positive. ICTU however suspect that in non-unionised employments and especially in SMEs that there may be more problems with the implementation of the protocol.

Two consistent difficulties have arisen during the stage of return to the workplace:

  1. There has been some confusion among employers who continued to operate throughout the crisis as to whether the Protocol applies to them, as well as to those only now returning to work. It does!
  2. Some unions are reporting difficulties getting trade union representatives to take on the role of Covid-19 Worker representative. This is allowing employers to appoint someone to this role, which may undermine the consultative intention of this provision.

Slovenia. The state of epidemy for COVID-19 was officially called off on 1st June 2020. However, certain safety procedures are still recommended, yet these are considerably less in comparison with the period of epidemy. After the borders were reopened, however, there were again new cases of COVID-19. ZSSS assessed the role of employers' occupational health services during the epidemy COVID-19. In Slovenia, these services are provided by external private agencies that offer their services to employers on market. The analysis indicated that these services did not meet the expectations, as they were mostly not present when the anti-epidemy measures at workplaces were planned and implemented. ZSSS calls for a systemic change in the role of those services– they should be public services instead of private. ZSSS will start national social dialogue on the necessary reform.

The Confederation has also initiated TU action against individual employers that issued a warning to their employees not to plan a vacation outside Slovenia in the countries that are still deemed as risky concerning COVID-19. The employers alerted that a termination of employment should allegedly be possible if the employees were quarantined by the authorities upon return of their trips.

During the epidemic, all public transport was cancelled, and workers had to organise the commuting to way through private transportation. Since May 2020 city public transport is again operational. Drivers of local bus services must use face mask and a transparent shield was installed next to driver's seat. City buses operate cashless (one pays before boarding the bus), therefore, the city bus drivers are not in direct contact with passengers anyway. However, this is different with the intercity services, where drivers often must sell tickets to passengers that wish to pay in cash and no shield is installed apparently for technical reasons related to the design of the coach. For this reason, these drivers are obliged to wear excessive personal protective equipment: a face mask plus a face transparent shield whenever they are in contact with a paying passenger. Since the start of the hot weather, the drivers complain that these PPEs are unbearable and some of them reported to feel dizzy. They question the safety of not only themselves but of passengers as well. The trade union of bus drivers announced a strike if this is not sorted out at once. They also call to the Ministry for health and protective health services to act at once.

Spain. In Spain, COVID-19 is not being classified as an occupational disease, but rather as an accident at work. There are however certain activities for which contagion by COVID19 must be legally considered as an "occupational disease". Specifically, infectious diseases caused by biological agents (Group 3) through the work of persons involved in prevention, medical care, and activities where a risk of infection has been proven are considered to be occupational diseases. The activities contemplated are the following: laboratory personnel; non-healthcare personnel, workers in care centres or care for the sick, both in outpatient clinics and in closed institutions or at home; research or clinical analysis laboratory workers; work involving the collection, handling or use of human blood or its derivatives; dentists; emergency personnel; prison workers; public order personnel (which undoubtedly includes the members of the Security Forces and Corps that currently support the health facilities for this type of activity).

The qualification as an occupational disease instead of an accident at work is important because the latter involved a special follow-up, with previous and periodic obligatory medical examinations, with their corresponding responsibilities for employers in case of non-compliance and with the observation of periods for monitoring. However, a new law adopted amid the crisis (Royal Decree Law 19/2020, of 26 May, which adopts complementary measures in agricultural, scientific, economic, employment and Social Security and tax matters to alleviate the effects of COVID-19), disposes that diseases suffered by personnel who provide services in health or social-health centres as a result of the contagion of the SARS-CoV2 virus during the state of alarm are classified as occupational contingencies derived from accidents at work. The qualification as occupational accident contingency extends to the month following the end of the state of alarm. This measure is clearly insufficient for the unions, who called for this time limit to be removed.

UGT Spain has denounced this situation in the media and by letter to the Secretary of State for Social Security and Pensions of the Ministry of Inclusion, Social Security and Migration. To date, the demand has not been met, which is none other than compliance with the legislation in force in our country.

On the other hand, the union demands a greater coordination between the public administrations in charge of managing the competences on work and public health, since there is a vacuum when it comes to dealing with the complaints about the lack of compliance in the field of occupational safety and health in the workplaces, leaving the workers unprotected.

UGT has focused its efforts on advising workers to find solutions negotiated with the companies and adjusted to the legislation. During the state of emergency, the union set up an online consultation, which attended an average of 3,500 weekly consultations of workers regarding dealing with coronavirus in the workplace. In those companies with workers’ representation, agreements to the workers against the pandemic were reached more frequently.

In the framework of the retake of the economic activities, the most frequent queries related to occupational health and safety and the lack of organisational measures to avoid social contact, non-compliance with the safety distance in companies, lack of collective protection measures (screens, separation of work spaces), lack of consultation and participation of legal representatives of the workers in relation to the contingency plans (art. 18 LPRL), question about PPE, issues regarding data protection and surveillance regarding the measure of body temperature at the work place and data protection, among others.

Regarding the complaints to the Labour Inspectorate, the sectors with the least number of complaints were industry and construction, possibly due to the great deal of negotiation between employers and trade unions. Even so, the union remains vigilant about the compliance of these agreements, even performing visits to the workplaces. In the case of the service sector, the number of complaints has been somewhat higher than in the previous case. The main reason for the complaints in this sector has been the lack of preventive and protective measures to avoid the risk of contagion. In the case of the public sector, the insufficient provision of personal protection measures has led to many workers becoming infected and in some cases even losing their lives. In Spain, the contagion among health professionals amounted to more than 51,000 cases.

Sweden. When it comes to violations of OSH regulations and the trade union response regarding these, the statistics show a conclusive pattern in certain areas. Many work suspensions have been carried out by safety reps as some employers did not know the regulations and the way to implement them or others were reluctant to observe them. Work suspension is the safety reps’ legal action, regulated in Work Environment Act, to use when OSH regulations are being violated. After the safety representative determines a work suspension, the Labour Inspectorate should carry out an inspection. The reopening of the workplace is allowed after the employer undertakes the necessary measures. The Swedish Work Environment Authority is the public body in charge of the Labour Inspectorate. LO regrets that there has been a change over the last 10 years in the profile of Labour inspectors moving to a more generalist methodology. Also, in the framework of the EU’s REFIT program, the aim of the labour inspectorate interventions has shifted from a precautionary approach to proportionality; that is to say putting on equal footing the prevention of risks and the protection of the health of workers with the “burden” of OSH prevention for employers.

The number of work suspension until today (79) represent the same amount as those for the whole 2019 and most of them took place in the second half of April. Suspensions have been performed mainly in the health care sector (amounting to 46). Transport is another sector affected by violations of OSH regulations.

UK. The Health and Safety Executive has received 21.998 COVID related contacts, of which 7529 COVID related concerns, 9.110 COVID related calls and 5.359 COVID related advice requests since 9th March 2020. The peak was reached on 8th June, with 1700 calls received. 20% of Concerns have been raised within Manufacturing work types. 16% within Construction work activities. Despite the volume of concerns raised, and the devastatingly high infection rate and death toll, health and safety investigators were sent out just 64 times between April and June. Not a single inspection took place in a care home since 10th March (“lockdown” began on 23rd March, despite care home deaths contributing to 50% of the death toll).

No formal industrial action has taken place in response to violations of safety regulations (i.e. no balloting) but numerous walkouts have taken place in various sectors. Workers citing Section 44 of the Employment Rights Act 1996 over ‘serious and imminent danger’ have refused to attend the workplace after known coronavirus cases, or when demands over safer working not met (for example social distancing or lack of PPE). This has happened in food factories, libraries and in several sorting/delivery offices in the postal service.

Government safety measures have been temporary only. There is encouragement on employers to make public their risk assessments (though this is not mandatory).

European Federations. EFFAT has undertaken a research about the meat industry in regard to Covid-19 across various countries in Europe which identifies the appalling working, employment and housing conditions affecting thousands of meat workers in many countries across Europe as the reasons why meat processing plants have become vectors for the spread of Covid-19. The report also provides an overview of the work arrangements and business practices pursued by meat companies to cut costs and escape employer liability. Taken together, these paint a bleak picture of a sector in need of urgent and serious reform. Meat workers are demonstrating astounding dedication to their jobs during the Covid-19 pandemic, exposing themselves to risk of contagion due to the frequent lack of effective health protection measures. The sector depends to a large extent on migrant and crossborder workers both from inside the EU and from third countries. Whether employed through abusive subcontracting practices, as temporary agency workers, posted workers or forced to accept (bogus) self-employed status, the working, housing and employment conditions of a vast proportion of meat workers are simply deplorable – both a cause and symptom of exploitation, social dumping and unfair competition across Europe. Among other demands, EFFAT calls on the EU Commission to propose an ambitious legal instrument ensuring joint and several (chain) liability throughout the whole subcontracting chain. The initiative should also aim at boosting collective bargaining and combating wage dumping. The report is available at: https://effat.org/in-thespotlight/effat-meat-sector-report-poor-conditions-to-blame-for-spread-of-covid-19/

22.07.2020
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