Employer duties and responsibilitiesPrimary duty
What is the nature and extent of the employer’s primary duty to protect workers’ health and safety under the relevant legislation? How is this duty observed and interpreted in practice?
The Occupational Safety and Health Act (OSHA) imposes on a business owner the obligation to establish standards for the prevention of industrial accidents, create pleasant working environments and improve working conditions to alleviate physical fatigue and emotional stress of employees and furnish information on workplace health and safety to employees. The provisions outlined in OSHA and other subordinate laws specifically obligate business owners to take specific measures to ensure the safety and health within a workplace. If a business owner fails to comply with such obligations under OSHA, the business owner will be subject to penalties or criminal sanctions.
Meanwhile, SAPA imposes on a responsible executive the duty to ensure safety and health, which focuses on the 'management' of safety and health relating to the entire business or workplace. Given that the foregoing Act has just recently been enacted, precedents have yet to be established as to the interpretation and application of the duty to ensure safety and health.Third parties
Does the employer owe a duty to protect the health and safety of third parties? If so, what is the nature and extent of this duty?
Under OSHA, business owners assume the duty to establish health and safety measures for workers that they have hired: provided, if a worker hired by the relevant contractor works at contractee (employer)’s workplace, such employer is obliged to take necessary health and safety measures to prevent industrial accidents involving both its employees and the employees of the relevant contractor(article 63).
Meanwhile, SAPA provides for the obligation of responsible executives, such as:
- the duty to ensure safety and health of 'employees' in the business or workplace to which he or she actually controls, operates, and manages (article 4); and
- even in cases of subcontracting, outsourcing, consigning, etc, to a third party, where responsible for the actual control, operation and management of the relevant facilities, equipment, and place, etc, the duty to ensure safety and health of 'employees of a third party' (proviso to article 5).
What is the nature and extent of the employer’s duty to ensure safe work premises?
OSHA mandates business owners to take measures to prevent accidents involving employees, and such obligation is not confined to a workplace or place of business directly controlled by a business owner. The Supreme Court of Korea recently held that, if an employee hired by a business owner provides work at a third party’s workplace, the business owner’s duty to prevent accidents is not negated, solely on the basis that such a workplace is not directly managed and controlled by the business owner (see Supreme Court Decision 2016Do14559 of 29 April 2020).
As SAPA likewise imposes an individual business owner or a responsible executive the duty to ensure safety and health of a business or workplace that he or she 'actually controls, operates, and manages', the applicable scope is not necessarily confined to a place that a business owner directly controls.Plant and equipment
What are the employer’s duties and responsibilities regarding the provision of safe plant and equipment?
OSHA mandates business owners to ensure necessary protective measures, health and safety measures to prevent accidents and injuries relating to hazardous or dangerous machinery and equipment (article 80). OSHA prohibits the use of any hazardous or dangerous machinery that may endanger the health and safety of employees unless safety certification has been obtained (article 84). Also, concerning any hazardous or dangerous machinery that is required to undergo safety inspections, such inspections are required to be carried out at regular time intervals, and machinery that has neither undergone nor passed such safety inspections cannot be used (article 93).Work systems, training and supervision
What are the employer’s duties and responsibilities regarding the provision of safe work systems and adequate training and supervision?
OSHA requires that a business owner to have a safety and health management officer, a management supervisor, a safety manager, a health manager, a safety and health management director, etc, in consideration of the type or scale of business, and to establish an occupational health and safety committee within the workplace to deliberate on and resolve key matters related to safety and health within the workplace (section 1 of Chapter 2). Also, for the purpose of maintaining safety and health, a business owner is obligated to prepare a health and safety management regulation to be made available to employees.
Also, OSHA requires that a business owner provide regular health and safety education or training to employees, health and safety education or training upon recruitment of employees and changes in work duties, and health and safety education or training upon recruitment of employees to perform dangerous or hazardous tasks or planned changes in such work duties.
A business owner is obliged to provide safety and health education related to the duties of a health and safety management officer, a management supervisor, a safety manager, a health manager and a health and safety management director, etc (article 32).
Meanwhile, the duty to ensure safety and health under SAPA involve:
- granting authority and allocating budget necessary for a safety and health management officer, a management supervisor and a chief safety and health management officer to faithfully perform his or her duties and to assess and establishing a criteria for assessment at least once on a semi-annual basis to assess and manage whether the relevant duties are being faithfully performed;
- assigning a safety manager, a health manager, a safety and health management director, and an industrial physician according to the standard as set forth in SAPA; and
- monitoring at least once on a semi-annual basis as to whether safety and health education on hazardous and dangerous works are being provided and taking necessary measures.
What rules and requirements govern employers’ response to and reporting of workplace accidents?
Under OSHA, if an industrial accident occurs, a business owner is obligated to preserve documents on the cause of the accident and report to the Minister of Employment and Labor as to the cause of the accident, period of reporting, and preventive action plan (article 57). Further, in the case of serious accidents (ie, one or more death, injuries suffered by two or more people from the same incident that require medical treatment for three months or longer, 10 or more people suffering from an injury or illness resulting from the same cause), a business owner must take necessary health and safety measures involving the immediate cessation of relevant work operations and evacuation of employees, and the occurrence of a serious accident must be promptly reported to the competent employment and labor office (article 54).
Meanwhile, SAPA provides for the establishment of a manual based on the duty to ensure safety and health in preparation for any occurrence of serious industrial accidents or other urgent risks that may lead to such occurrence, and to conduct inspections at least once on a semi-annual basis to determine whether measures are being taken according to the relevant manual.Risk assessments
What rules, requirements, procedures and best practices should employers be aware of when conducting occupational risk and hazard assessments?
OSHA imposes on a business owner the obligation to conduct a workplace risk assessment pursuant to the Guideline on Workplace Risk Assessment. Minister of Employment Labor (article 36). The foregoing workplace risk assessment means a series of processes involving the identification of hazardous and risk factors the presumption and decision of the probable occurrence (frequency) and severity (degree) of an injury or an illness caused by the relevant hazardous or risk factor, and the development and implementation of measures to mitigate (reduce) such factors... When conducting a risk assessment, business owners are required to engage the employees of the relevant workplace, and to document and preserve the assessment results and follow-up measures (article 36(2) and (3) of OSHA).
Meanwhile, SAPA imposes responsible executives the obligation to establish a work procedure based on the duty to ensure safety and health to identify and improve hazardous and risk factors, and to take necessary measures following monitoring at least once on a semi-annual basis to determine whether hazardous and risk factors are identified and improved. However, the establishment of a work procedure and monitoring at least once on a semi-annual basis may be substituted with the risk assessment referred to in the foregoing OSHA.Disclosure and reporting requirements
Are employers required to submit regular health and safety reports to the relevant authorities? If so, what is the nature and extent of this requirement?
OSHA does not mandate an employer to periodically submit health and safety reports.
However, the Minister of Employment and Labour may order a business owner of a workplace that is recognised as in need of comprehensive improvement measures to prevent industrial accidents to develop and implement a comprehensive plan to better ensure the health and safety of the workplace and facilities, etc, and the business owner subjected to such order must prepare a health and safety plan and submit such plan to the Minister of Employment and Labour. Such health and safety plan shall include details on facilities, health and safety management system, health and safety education and any other necessary matters for the prevention of industrial accidents and improvement of working environments.Provision of information to workers
What requirements apply regarding the provision of health and safety information to workers?
In accordance with OSHA, a business owner has broad obligations to provide health and safety information to employees such as:
- the duty to furnish the essential points of OSHA and subordinate laws, and the Health and Safety Management Regulations to employees;
- the duty to install and affix health and safety signs;
- the duty to indicate safety certification obtained regarding the relevant dangerous or hazardous machinery that may endanger the health and safety of employees;
- the duty to affix the issued safety inspection certificate on the relevant machinery;
- the duty to make available the Material Safety Data Sheets (MSDS) – which details the product name, name and content of chemical substances, precautions when handling chemical products or substances, and indicates the hazardous and physical hazards, physical and chemical features, etc – relating to specific chemical substances or its mixtures covered by the MSDS and provide education or training on the above; and
- the duty to mark warnings on containers of materials covered by the MSDS.
Business owners will be subject to a fine in cases of a breach of these obligations.Insurance requirements
What insurance must employers carry to cover liability for occupational health and safety risks?
OSHA mandates a business owner to subscribe to an industrial accident compensation insurance against risks involving occupational health and safety.Other duties and responsibilities
Are employers subject to any other notable health and safety duties and responsibilities in your jurisdiction?
Under OSHA, a business owner, particularly in the construction business, is required to establish measures to prevent industrial accidents. The principal obligations of those engaged in the construction business are as follows:
- owners of construction projects must prepare a basic health and safety ledger (during the planning stage of construction works);
- the duty to furnish such ledger to a designer and ensure that the designer prepares and complies with the design health and safety ledger (during the design stage of construction works); and
- the duty to furnish the design health and safety ledger to the contractor who is awarded the contract for construction works and ensure that the contractor prepares and complies with the construction health and safety ledger (during the construction stage of the works).
Meanwhile, the owner of the construction project and the contractor who is awarded the contract for construction works may neither shorten the construction period nor change the fixed construction method without any justifiable grounds, and if the contractor requests extension of the construction period due to a delay in construction works caused by a natural disaster, etc, such period must be extended unless other special circumstances exist.