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Workplace Accident Claims in Kenya: Your Rights Under OSHA

Workplace accidents can have devastating physical, emotional, and financial consequences for employees. In Kenya, the Occupational Safety and Health Act, 2007 (OSHA) and the Work Injury Benefits Act, 2007 (WIBA) provide a legal framework to protect workers and ensure they receive fair compensation for injuries sustained at work. This article explores the rights of employees under these laws, the process of claiming compensation, and key considerations for navigating workplace accident claims.

Understanding OSHA and WIBA

The Occupational Safety and Health Act, 2007 (OSHA)

The OSHA is Kenya’s primary legislation governing workplace safety. It imposes duties on employers to ensure the health, safety, and welfare of employees. Key provisions include:

  • Employer Responsibilities: Employers must provide a safe working environment, including proper equipment, training, and safety measures (Section 6).

  • Employee Responsibilities: Workers must comply with safety protocols and report hazards (Section 13).

  • Reporting Accidents: Employers are required to report workplace accidents resulting in death, serious injury, or incapacity for more than three days to the Directorate of Occupational Safety and Health Services (DOSHS) (Section 11).

  • Penalties for Non-Compliance: Employers who fail to adhere to OSHA regulations may face fines, imprisonment, or both.

OSHA establishes the foundation for preventing workplace accidents and ensuring accountability when they occur.

The Work Injury Benefits Act, 2007 (WIBA)

The WIBA complements OSHA by providing a compensation mechanism for employees injured or killed in the course of employment. It replaced the Workmen’s Compensation Act and introduced a no-fault compensation system, meaning employees can claim benefits regardless of who caused the accident, except in cases of self-inflicted injuries.

Key features of WIBA include:

  • Coverage: Applies to all employees, including casual workers, in both public and private sectors (Section 3).

  • Employer Liability: Employers must compensate employees for injuries or diseases arising out of and in the course of employment (Section 10).

  • Insurance Requirement: Employers are required to obtain insurance to cover potential claims under WIBA (Section 7).

  • Compensation Types: Benefits include medical expenses, temporary or permanent disability payments, and death benefits for dependents.

Together, OSHA and WIBA create a comprehensive system for workplace safety and compensation.

Types of Compensable Injuries Under WIBA

Employees can claim compensation for various workplace injuries or conditions, including:

  1. Physical Injuries: Fractures, burns, cuts, or amputations caused by machinery, falls, or other workplace hazards.

  2. Occupational Diseases: Illnesses contracted due to exposure to harmful substances or conditions, such as respiratory diseases from dust or chemicals.

  3. Permanent Disability: Injuries resulting in partial or total loss of bodily function, such as loss of limbs or vision.

  4. Temporary Disability: Injuries that prevent an employee from working for a period but allow eventual recovery.

  5. Fatal Accidents: Compensation for dependents in cases where an employee dies due to a workplace accident.

Compensation is not available for injuries caused intentionally by the employee or those resulting from gross misconduct, such as working under the influence of alcohol or drugs (Section 12, WIBA).

The Compensation Claim Process

Filing a workplace accident claim under WIBA involves several steps. Below is a detailed guide to the process:

1. Notify the Employer

Employees must notify their employer of the injury or occupational disease as soon as possible, preferably in writing. Under WIBA (Section 21), notice should be given within 14 days for injuries and 30 days for diseases, though late notification may be excused if justified.

  • Details to Include: Date, time, place, and circumstances of the accident, as well as the nature of the injury.

  • Employer’s Role: The employer must record the incident in their accident register and report it to DOSHS within seven days for serious injuries or fatalities.

2. Seek Medical Attention

Employees should seek immediate medical treatment from a registered medical practitioner. The employer is responsible for covering medical expenses, including hospitalization, medication, and rehabilitation (Section 47, WIBA).

  • Medical Report: Obtain a detailed medical report documenting the injury, treatment, and prognosis. This is critical for assessing compensation.

  • Employer’s Obligation: Employers must arrange or reimburse medical care, failing which employees can seek reimbursement through the claim process.

3. File a Claim with the Employer

Submit a formal claim to the employer or their insurance provider. The claim should include:

  • A completed WIBA claim form (available from DOSHS or the employer’s insurer).

  • The medical report and receipts for medical expenses.

  • Proof of employment, such as a contract or payslips.

  • A police report, if applicable (e.g., for accidents involving vehicles).

Employers must forward the claim to their insurer within seven days (Section 24, WIBA).

4. Assessment by DOSHS

If the employer or insurer disputes the claim or fails to process it, the employee can escalate the matter to the Director of Occupational Safety and Health Services. The Director may:

  • Conduct an investigation to verify the claim.

  • Assess the degree of disability using the WIBA schedule (First Schedule).

  • Determine the compensation amount based on the employee’s earnings and the nature of the injury.

5. Receive Compensation

Once approved, compensation may be paid as:

  • Lump Sum: For permanent disability or death benefits.

  • Periodic Payments: For temporary disability, typically equivalent to a percentage of the employee’s monthly earnings.

  • Medical Reimbursement: For treatment costs.

Compensation amounts are calculated based on the employee’s monthly earnings and the degree of disability, as outlined in WIBA’s First Schedule. For example:

  • Temporary Total Disability: 50% of monthly earnings for up to 12 months.

  • Permanent Total Disability: 96 months’ earnings, subject to a minimum and maximum limit.

  • Death Benefits: A lump sum of 60 months’ earnings for dependents, plus funeral expenses.

6. Appeal if Necessary

If the employee disagrees with the compensation decision, they can appeal to the Director of DOSHS within 60 days. If unresolved, the matter can be escalated to the Employment and Labour Relations Court for adjudication (Section 51, WIBA).

Key Considerations for Employees

1. Timelines

Adhering to notification and filing deadlines is critical. Delays may jeopardize the claim unless justified by exceptional circumstances, such as hospitalization.

2. Documentation

Maintain thorough records, including medical reports, receipts, employment documents, and correspondence with the employer or insurer. These strengthen the claim and support appeals if needed.

3. Employer’s Insurance

Confirm whether the employer has valid WIBA insurance. If not, the employer is personally liable, but recovery may be challenging if the employer is insolvent. In such cases, legal action may be necessary.

4. Legal Representation

Complex claims, disputes, or employer non-compliance may require legal assistance. A lawyer specializing in labor law can guide employees through the process, negotiate with insurers, or represent them in court.

5. Workplace Safety Advocacy

Employees can report unsafe conditions to DOSHS anonymously to prevent future accidents. OSHA empowers workers to refuse dangerous work without fear of retaliation (Section 13).

Challenges in Claiming Compensation

Despite the legal protections, employees may face obstacles, including:

  • Employer Non-Compliance: Some employers fail to report accidents, obtain insurance, or cooperate with claims.

  • Disputes Over Liability: Employers or insurers may argue the injury was not work-related or was caused by employee misconduct.

  • Delayed Payments: Insurers may delay processing claims, causing financial hardship.

  • Low Compensation: Amounts may be insufficient to cover long-term needs, especially for permanent disabilities.

To address these challenges, employees should seek legal advice and leverage DOSHS’s enforcement powers.

Conclusion

The Occupational Safety and Health Act, 2007, and the Work Injury Compensation Act, 2007, provide a vital safety net for Kenyan workers, ensuring access to compensation for workplace injuries. By understanding their rights and following the claim process diligently, employees can secure the support they need to recover and move forward. Employers, meanwhile, must prioritize safety and compliance to protect their workforce and avoid liability.

If you or a loved one has suffered a workplace injury, don’t navigate the claims process alone. Contact us today at +254 716 209 104 or info@legalguide.co.ke for expert advice.