Articles

Employer Responsibilities in Workplace Safety Laws

Workplace safety is a critical aspect of employment law in Kenya, governed primarily by the Occupational Safety and Health Act, 2007 (OSHA). This legislation establishes a comprehensive framework to ensure safe and healthy working conditions for employees across various sectors. Employers in Kenya are legally obligated to comply with the provisions of OSHA to protect employees from workplace hazards, promote well-being, and prevent occupational injuries and illnesses. This article explores the key employer responsibilities under the Act, focusing on risk assessments, employee protections, and other statutory obligations.

The Occupational Safety and Health Act, 2007 is the cornerstone of workplace safety legislation in Kenya. Enacted to align with international labor standards, such as those set by the International Labour Organization (ILO), the Act applies to all workplaces, including factories, offices, construction sites, and agricultural settings. Its primary objective is to secure the safety, health, and welfare of persons at work while protecting non-employees from risks arising from workplace activities.

The Act is administered by the Directorate of Occupational Safety and Health Services (DOSHS) under the Ministry of Labour and Social Protection. It imposes duties on employers, employees, and other stakeholders, with a particular emphasis on employer responsibilities to create and maintain a safe working environment.

Employer Responsibilities Under OSHA 2007

Employers in Kenya have a broad range of obligations under the Occupational Safety and Health Act, 2007. These responsibilities are designed to proactively identify and mitigate workplace risks, ensure compliance with safety standards, and safeguard employee well-being. Below are the key duties:

1. Provision of a Safe and Healthy Workplace

Under Section 6 of OSHA, employers are required to ensure, as far as is reasonably practicable, the safety, health, and welfare of all employees. This includes:

  • Safe Work Environment: Employers must provide and maintain a workplace free from recognized hazards that are likely to cause death or serious physical harm. This involves ensuring that premises, equipment, and systems of work are safe and without risks to health.

  • Safe Equipment and Machinery: All machinery, tools, and equipment must be properly maintained, inspected, and safe for use. Employers must ensure that employees are trained to operate machinery safely and that protective guards or devices are in place where necessary.

  • Safe Handling, Storage, and Transport: Substances, materials, and equipment must be handled, stored, and transported in a manner that minimizes risks to employees and others.

  • Adequate Welfare Facilities: Employers must provide clean and accessible welfare facilities, such as drinking water, sanitary conveniences, and rest areas, as outlined in Section 47.

2. Conducting Risk Assessments

One of the cornerstone requirements of OSHA 2007 is the obligation for employers to conduct risk assessments to identify and mitigate workplace hazards. Section 6(3) mandates that employers assess risks associated with work processes, equipment, substances, and the work environment. Key aspects of this obligation include:

  • Identifying Hazards: Employers must systematically identify potential hazards in the workplace, such as chemical exposures, ergonomic risks, fire hazards, or physical dangers like unguarded machinery.

  • Evaluating Risks: Once hazards are identified, employers must evaluate the likelihood and severity of harm. This involves assessing who might be affected (employees, contractors, visitors) and under what conditions.

  • Implementing Control Measures: Employers are required to implement measures to eliminate or minimize identified risks. This may include engineering controls (e.g., installing ventilation systems), administrative controls (e.g., rotating shifts to reduce fatigue), or providing personal protective equipment (PPE).

  • Regular Review: Risk assessments must be reviewed regularly, especially when there are changes in work processes, equipment, or the introduction of new substances. Reviews are also necessary after workplace incidents or near-misses.

Failure to conduct risk assessments can result in penalties, including fines or imprisonment, as well as increased liability in the event of workplace accidents.

3. Employee Protections and Rights

OSHA 2007 places a strong emphasis on protecting employees’ rights to a safe and healthy workplace. Employers are responsible for ensuring that employees are not exposed to preventable risks and are adequately informed, trained, and equipped to perform their duties safely. Key employee protections include:

  • Provision of Personal Protective Equipment (PPE): Under Section 6(2), employers must provide suitable PPE, such as helmets, gloves, goggles, or respiratory masks, where risks cannot be eliminated through other means. PPE must be provided at no cost to employees and maintained in good condition.

  • Training and Information: Employers are required to provide adequate training, instruction, and information to employees on workplace hazards, safe work practices, and emergency procedures (**Section 6 cucumbers). Training must be ongoing and tailored to specific job roles and risks.

  • Health and Safety Representatives: In workplaces with 20 or more employees, employers must facilitate the appointment of health and safety representatives or committees to monitor and promote safety compliance (Section 13). These representatives act as a bridge between employees and management on safety matters.

  • Non-Discrimination for Raising Safety Concerns: Section 10 prohibits employers from penalizing employees who report safety concerns, refuse unsafe work, or request safety inspections. This ensures employees can advocate for their safety without fear of retaliation.

  • Medical Examinations: For employees exposed to hazardous substances or conditions, employers must provide periodic medical examinations to monitor health impacts (Section 21).

4. Workplace Policies and Safety Programs

Employers are required to develop and implement health and safety policies that outline the organization’s commitment to compliance with OSHA 2007. These policies must be communicated to all employees and include:

  • Safety Rules and Procedures: Clear guidelines on safe work practices, emergency procedures, and reporting mechanisms for hazards or incidents.

  • Fire Safety: Employers must ensure fire prevention measures, such as fire extinguishers, alarms, and evacuation plans, are in place (Section 36).

  • First Aid Facilities: Adequate first aid kits and trained first aiders must be available in the workplace (Section 46).

  • Incident Reporting and Investigation: Employers must report serious workplace injuries, occupational diseases, or dangerous occurrences to DOSHS within specified timeframes (Section 24). They must also investigate incidents to prevent recurrence.

5. Registration of Workplaces

Under Section 44, employers must register their workplaces with DOSHS. This involves submitting details about the nature of work, number of employees, and potential hazards. Registration ensures that DOSHS can monitor compliance and conduct inspections.

6. Special Provisions for Hazardous Work

Certain industries, such as construction, manufacturing, or mining, involve heightened risks. OSHA 2007 includes specific provisions for such workplaces, including:

  • Construction Safety: Employers must ensure that construction sites comply with safety standards for scaffolding, ladders, and fall protection (Section 59).

  • Chemical Safety: Hazardous substances must be labeled, stored, and handled according to strict guidelines, with material safety data sheets (MSDS) provided to employees (Section 61).

  • Noise and Vibration: Employers must mitigate excessive noise and vibration through engineering controls or PPE to prevent hearing loss or other health issues (Sections 63-64).

7. Emergency Preparedness

Employers must prepare for emergencies by developing and testing emergency response plans. This includes:

  • Fire Drills and Evacuation Plans: Regular drills to ensure employees are familiar with evacuation routes and procedures.

  • Emergency Equipment: Provision of fire extinguishers, emergency exits, and other safety equipment that is easily accessible and regularly maintained.

  • Incident Response: A clear protocol for responding to accidents, injuries, or hazardous material spills.

Enforcement and Penalties

The Directorate of Occupational Safety and Health Services (DOSHS) is responsible for enforcing OSHA 2007. DOSHS inspectors conduct regular workplace inspections to ensure compliance. Non-compliance can result in:

  • Fines: Employers who fail to comply with OSHA provisions may face fines of up to KES 500,000, depending on the severity of the violation.

  • Imprisonment: Serious breaches, such as those resulting in employee injury or death, may lead to imprisonment for up to seven years.

  • Workplace Closure: In extreme cases, DOSHS may order the closure of a workplace until safety standards are met.

  • Compensation Claims: Employees injured due to employer negligence may file claims under the Work Injury Benefits Act, 2007, which works in tandem with OSHA to provide compensation for workplace injuries.

Challenges and Practical Considerations

While OSHA 2007 provides a robust framework for workplace safety, employers in Kenya face several challenges in implementation:

  • Resource Constraints: Small and medium-sized enterprises (SMEs) may lack the financial or technical resources to conduct comprehensive risk assessments or provide adequate PPE.

  • Informal Sector: A significant portion of Kenya’s workforce operates in the informal sector, where compliance with OSHA is often minimal due to lack of awareness or enforcement.

  • Cultural Attitudes: In some workplaces, safety may not be prioritized due to cost-cutting measures or lack of awareness about long-term benefits.

To address these challenges, employers can:

  • Partner with DOSHS for training and compliance support.

  • Invest in cost-effective safety solutions, such as low-cost PPE or open-source safety training materials.

  • Foster a culture of safety by involving employees in safety committees and encouraging proactive hazard reporting.

Conclusion

The Occupational Safety and Health Act, 2007 places significant responsibilities on employers in Kenya to ensure a safe and healthy workplace. From conducting risk assessments to providing PPE, training employees, and implementing safety policies, employers play a pivotal role in safeguarding employee well-being. Compliance with OSHA not only fulfills legal obligations but also enhances productivity, reduces absenteeism, and fosters a positive workplace culture. By prioritizing workplace safety, employers contribute to a healthier, more sustainable workforce, aligning with Kenya’s broader goals of economic development and social protection.

For further guidance, employers can consult the Directorate of Occupational Safety and Health Services (DOSHS) or refer to the full text of the Occupational Safety and Health Act, 2007, available on the Kenyan government’s legal repositories.

Contact us today at +254 716 808 104 or info@lawguide.co.ke for further advice.