Occupational Health and Safety (OHS) is generally defined as the science of the anticipation, recognition, evaluation, and control of hazards arising in or from the workplace that could impair the health and well-being of workers, taking into account the possible impact of the surrounding communities and the general environment. (Benjamin O. Ali; Fundamental Principles of Occupational Health and Safety, Second Edition, International Labour Office-Geneva) This domain is necessarily vast, encompassing a large number of disciplines and numerous workplace and environmental hazards, and as such, a wide range of structures, skills, knowledge, and analytical capacities are needed to coordinate and implement all the building blocks that make up any national OHS system to extend protection to both the workers and the environment while keeping it up to date with the changing dynamics in the world of work.
The ILO’s mandate for work in the field of occupational safety and health dates from its very foundation. It states: “And whereas conditions of labour exist involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are so imperiled; and an improvement of those conditions is urgently required, as, for example, by the regulation of the hours of work including the establishment of a maximum working day and week…the protection of the worker against sickness, disease, and injury arising out of his employment… (Preamble to the Constitution of the International Labour Organization). This mandate was renewed in 1944 when the relevance of the ILO was reasserted at its Philadelphia Conference, stating thus; “The Conference recognizes the solemn obligation of the ILO to further among the nations of the world programmes which will achieve …(g) adequate protection for the life and health of workers in all occupations (emphasis mine on “all occupations”). (Declaration of Philadelphia, 1944, para III)
In response to the social, political, technological, and economic changes, the scope of occupational safety and health has evolved gradually and continuously. Over the years, globalization of the world’s economies and its repercussions have, arguably, been perceived as the greatest force for change in the world of work, and consequently, in the scope of occupational health and safety. Factors such as liberalization of trade, rapid technological progress over time, significant developments in transport and communication, shifting patterns of employment, changes in work organizational practices have greatly affected health and safety in the world of work.
New technologies and a shift in working patterns might well be the biggest generators of new types and patterns of hazards, exposures, and risks. This article focuses on two dynamics in the new normal in the field of work, the most obvious being the changes in both the structure and patterns of work as a result of the novel Corona Virus. The second is due to a combination of factors such as the initiative to create more employment opportunities, creation of more sources of income, advancement in technology that has provided for virtual platforms of work and led to the growth of what has come to be known as the “gig economy”.
The issue as it stands now is whether the legislation on Occupational Health and Safety and Compensation for the same cover and provide for the new normal at the workplace and whether they offer sufficient protection and remedies to both the employer and employee in light of new occupational hazards, virtual work platforms and the like.
The International Labour Conference at its 94th session in June 2006 adopted Convention No. 187 concerning the promotional framework for occupational safety and health and its accompanying Recommendation No. 197. The main purpose of the Convention is to ensure that a higher priority is given to occupational safety and health in national agendas and to foster political commitments in a tripartite context for the improvement of occupational safety and health. The content of the Convention is promotional rather than prescriptive and is based on two fundamental concepts: the development and maintenance of a preventive safety and health culture and the application at a national level of a systems management approach to occupational safety and health. The history of occupational health and safety in Uganda dates as far back as colonial times. Most of the legislation originated from the British laws when Uganda was a British protectorate. British laws were then adopted with minor modifications in 1964 just after Uganda’s independence in 1962. The first law covering occupational safety and health at the workplace was the Factories Act (Cap 198) of 1964. This runs up to 2000 when it became the Factories Act (Cap 220), Laws of Uganda, 2000. With time, however, this law was no longer in consonance with the prevailing times as penalties that were creating a deterrent effect earlier in 1960 had been eroded. As such, efforts were taken to bring the legislation into conformity with the current economic times. Currently, the occupational health and safety legislative framework of Uganda is based on the 1995 Constitution. The main piece of legislation is the Occupational Safety and Health Act, No. 9 of 2006. This is supported by several other laws which include; the Workers Compensation Act (Cap 225), Laws of Uganda 2000, The Employment Act No.6 of 2006, and many other subsidiary legislations.
The efficiency and effectiveness of these legislations to converse emerging issues of occupational health and safety in the new normal are questionable. The presence of a national system for occupational health and safety that responds to the effects of both socio-economic and technological changes on working conditions and environments, one that is not just built once but is strengthened, reorganized, and reoriented through a permanent cyclical process of reviews, performance evaluations and readjustments of objectives and programmes or creation of new ones to meet new needs, as one of the core OSH principles is questionable too.
A Glimpse into the Occupational Safety and Health Act, No. 9, 2006.
The definition section suggests that the workplace and working environment have the same definition. It attempts to define “working environment” to mean ALL places of work and all sites and areas where work is carried out including not only the permanent, indoor, stationary places of work such as factories, offices, and shops but also temporary places of work such as civil engineering sites, open-air places such as fields, forests and roads, oil refineries and mobile places of work such as cubs of tracks, seats of tractors, excavators….. (Section 2). This definition does not explicitly provide for homes and personal residences as places of work but the use of the phrase “ALL” in the definition could be construed to include personal residences. The definition, in providing for different places of work such as permanent, temporary, or mobile, may cover for some advancements in work such as transport service providers but does not cater for virtual platforms of work and does not foresee virtual work related hazards. Read together with Section 13 of the Act, the section places a duty on an employer to take as far as is reasonably possible, all practical measures for the protection of his or her workers and the general public from the dangerous aspects of the employer’s undertaking at his or her costs. In light of the Corona Virus situation, where to observe the government Standard Operating Procedures, employers have chosen to decongest work places by having some employees work from home, the feasibility of this section in terms of the possibility of an employer fulfilling his duty of ensuring and providing a safe working space for the employee hang in balance. The question of where to draw the line between the employees’ position as a resident of the home and therefore having full responsibility for their safety and their position as an employee in a workspace subject to the care of the employer. It leaves to be discovered how, in such a circumstance, the law would play out as to allow the employer to take care and be mindful of the surroundings and general public of each of their employees having different workplaces as a result of living in different locations and working from home. From an economic perspective, would it be economically feasible for the business to foot all such costs in the name of providing a safe and healthy working environment for employees? Section 26 speaks to a duty to provide safe premises. If the premises double as the home of the employee, it begs the question of how far the employer’s duty to carry out activities meant to ensure safe premises can go while striking the balance with the constitutionally guaranteed right to privacy, as a home is a private space too. (Article 27 of the Constitution of the Republic of Uganda, 1995).
Section 14 of the Act places a duty on the employer to have a written statement of policy in respect to the safety and health of employees while at work and revise it as often as possible. However, the Act states that this should be the case where an employer has at least 20 employees. One wonders what informed the decision to recommend a health and safety policy in a workplace and deeming it most necessary for workplaces having at least 20 workers. That leaves the occupational health and safety of employees in workplaces with below 20 employees unguaranteed and not given the due attention it deserves. In a pandemic where employers are laying off workers to cut costs, the number of employees in a workplace is becoming increasingly low and might well be below 20 employees. Similarly, this may also be the case in situations where, due to technological advancements, machines are fast replacing human beings, forcing employees to lay off human labor. Employers, in a calculative move to escape costs of maintaining occupational health and safety by being bound by such policies, may revert to laying off some employees to reduce the number below 20. It might be safe to say the Act takes on a discriminative approach as the guarantees of occupational safety and health for big workplaces are stronger than those of smaller workplaces in terms of the provision of occupational safety and health policy. The presumption for the lawmakers might have been that the bigger the workplace, the more hazardous it is, and vice versa. This presumption is rebuttable in the face of the changing structures and patterns of work, the labour force and the economic considerations accruing therefrom.
On the overhaul, a look at Uganda’s current legislation envisages occupational hazards to only emanate from specific kinds of workplaces such as factories, mines, and other such workplaces having vividly physical hazards such as chemicals, gases, and dangerous machines. Little or no attention is given to unseen hazards that can result from work if not paid attention too such as mental health illnesses like stress and depression. With the Corona Virus claiming lives and having adverse economic impacts on different areas of employee’s lives, the workplace, may, if no proper social adjustments are done be a source of depression and stress, a thing an employer might need to pay attention, give due consideration and deem fit to warrant compensation under the Workers Compensation Legislation.
Virtual work environments.
The emergence of a virtual work environment following the development of ICT has led to the emergence of new occupational health and safety risks. These new OHS risks may have different origins some of which include; new technologies, new production processes, new and emerging forms of work. Identifying these risks can assist project managers in establishing effective strategies for preventing them, such that the results of inventions such as international virtual project teams will not be affected. There is a need to create awareness of these risks and their severity by employers through specific training, setting rules, and making available the necessary tools to work in the virtual environment. Glover predicts big changes in the way that the companies are organized, with less focus on developing internal capabilities among their workforces, and more on bringing together capabilities from many different sources such as consultants and freelancers in a virtual workplace. (Institute for Public Policy Research, Technology, Globalization and the Future of Work in Europe, 2017). It is likely to be hard to assess OHS risks continuously and regularly for mobile or remote workers, hence suffering from a lack of OSH monitoring and poor access to OSH services. A virtual workforce could find it difficult to know that OSH services and information relevant to them exist and it could also be difficult for OSH regulators to influence such a workforce. (Ministry of Social Affairs and Health Finland, Global Health Security Agenda Plot Assessment of the United Kingdom). In 2002, the EU-OSHA set up a “Risk Observatory” that identified four categories of risks to provide a more complete view namely; physical risks such as eye fatigue, noise and electromagnetic fields of mobile phones, varicose veins, thrombosis, etc; organizational, social and human risks such as stress and high emotional load; biological risks and chemical risks. There were also identified multifactorial risks which are a combination of different risks, for example sitting in a chair for a long period and noise.
In light of the new normal in the workplace and the general world of work, laws, and policies need to be adjusted to cater to the evolving and emerging trends in work as discussed above. With the emerging trends, information is vital for the development and implementation of effective programmes and policies. The collection and dissemination of accurate information on hazards and hazardous materials, surveillance of workplaces, monitoring of compliance with policies and good practices are central to the establishment and enforcement of effective policies. Occupational health services covering all workers on different platforms, physical or virtual should be established. Ideally, all workers in all categories of economic activity should have access to such services.