[co-authors: Daniel Francisco, Iván Blume]*

Occupational safety and health (OSH) is currently a hot labor topic in Peru. On December 30, 2019, the government issued Urgency Decree No. 044-2019 (UD) focused on reinforcing the inspection capacities of labor authorities and including severe penalties for noncompliance such as criminal liability for employers and temporary closure of the workplace.

This is a governmental reaction to high-profile workplace fatalities in Peru. The main issues addressed by the UD are the following:

• Temporary closure: Temporary closure of a workplace has been regulated as both a preventive measure and an administrative sanction. Consequently, the labor authorities are entitled to order a temporary closure in the following cases: (i) fatal accident of an employee in the workplace, and (ii) obstruction of investigative work involving fatal accidents.
• When the closure is applied as an administrative sanction, it can last up to 30 calendar days and includes an area of the economic unit or the whole economic unit where the safety violation occurred. If the employer proves to have implemented improvement measures, the closure time can be reduced by up to 15 days.

The above will be in force the day after the regulations of the UD are published.

• Criminalization of safety violations: An employer that deliberately violates the OSH rules resulting in imminent and grave danger to life, health, or the physical integrity of its employees, can be imprisoned from one to four years. However, if deliberate noncompliance of OSH standards causes the death of, or grave injury to, an employee or third party and this result could have been anticipated, the responsible person can be imprisoned from four to eight years in case of death and three to six years in case of serious injury.

Comments and Takeaways

• Companies may want to update their health and safety management system and verify their compliance with all current OSH rules in order to prevent workplace accidents that may trigger sanctions such as temporary closure or criminal liability.
• In addition, companies may also want to verify that their contractors and subcontractors are also in compliance with health and safety regulations. Employers may want to incorporate suitable warranties and indemnity clauses in their services agreements with contractors and subcontractors.

The legal implications and impact of the UD are yet to be seen, as the UD’s regulations are expected to clarify many ambiguities regarding its scope and application. It is clear, however, that achieving and maintaining compliance with OSH will represent a new challenge for all employers in Peru, given that noncompliance could lead to the temporary closure of the workplace and even criminal sanctions.

*Rodrigo, Elias & Medrano