novedades

Good labor faith and the employer's sanctioning power in matters of Occupational Safety and Health

February 20, 2026

Articles

Regardless of the particular interests of the parties that make up the employment relationship, the duty of good faith is established as a principle that ensures the achievement of common objectives, ensuring the adequate preservation of the productive environment. Thus, labor regulations recognize the worker's duty to act in good faith, avoiding exposing the employer to circumstances that could cause harm and extra costs. In the area of Occupational Safety and Health (OSH), adequate attention to these obligations is reaffirmed through the integration and cooperation of the various agents involved. In this regard, Law 29783 prescribes that workers collaborate and participate actively by establishing mechanisms that guarantee permanent collaboration and coordination in matters of OSH.

Given these circumstances, the worker's breach of obligations related to OSH is punishable by various measures, including in serious cases, the possibility of dismissal. The TUO of Legislative Decree 728 refers to three cases that allow the disengagement of the worker by a unilateral decision of the employer:

The worker's unjustified refusal to undergo compulsory medical examination.
Refusal to comply with prophylactic or curative measures prescribed by the doctor to avoid illnesses or accidents.
Non-compliance with the OSH Regulations, when the non-compliance is serious.

In the first case

The dismissal will be valid when the worker refuses to pass a medical examination without legitimate support. However, such refusal will only be punishable when the tests ordered by the employer are adequate for the purposes pursued by the standard: preservation of the worker's health and prevention of own and third party risks. Thus, for example, undergoing a test to determine whether or not a worker is a carrier of HIV will not be reasonable if the tasks are exclusively office work; on the other hand, they will be mandatory in the case of a health worker, who, if he is a carrier and is not diagnosed, could increase the risks of contagion to other workers, given the nature and conditions of the benefits in his charge.

In view of these circumstances, the worker's breach of obligations related to OSH is punishable by various measures

In the second case

The refusal to comply with prophylactic or curative measures is related to the greatest harm that non-compliance could cause to the employer: the need to grant disability permits, as well as damages to third parties that could have been avoided in case of strict compliance with the prescriptions made by the treating doctor.

In the third case

The dismissal will be valid in case of non-compliance with the OSH regulations, when these breaches are serious. This last attribute will be proven when circumstances such as the repetition of faults, the level of harm generated to the employer or workers, among others, are assessed in each specific case. It should be noted that a sanction will be reasonable even in the case of cases not included in the OSH regulations considering the inherent duty of workers to act in accordance with the guidelines established by the employer or the applicable regulation.

As can be seen, the assumptions developed are directly linked to the duty of good faith that the worker must maintain during the term of the employment relationship, and which entail the preservation of the interests of both the employer and the other workers and members of the organization. Viewed in this way, the employer's sanctioning power, far from corresponding to an exclusive punitive mechanism, must be understood as a preventive and management tool that seeks to correct behaviors before serious risks materialize.

Proper management in OSH requires involving the worker in such a way that they assume the active role that corresponds to them in accordance with the applicable regulations, aware that their non-compliance may cause harm to their colleagues and the employer, circumstances that imply the violation of good faith in the employment relationship and entail the possibility of being subject to sanctions conditioned on the seriousness of their conduct.