WIBA.pptx202420242023039393877376366373673

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1. PART IV – REPORTING OF ACCIDENTS GROUP 5 MEMBERS 1.JOSEPH SILA 21S01ALLB020 2.ISAAC OCHIENG 21S01ALLB059 3.ERICKSON NGARI 21S01ALLB043 4. PETER OUMA 21S01ALLB012

2. PART 11- OBLIGATIONS OF EMPLOYERS 1 . Employer to Be Insured : Section 7 of The Work Injury Benefits Act of 2007. Every employer is mandated by law to secure and maintain an insurance policy with an approved insurer to cover liabilities under the Act. This ensures that if an employee sustains a work-related injury or disease, the employer will have adequate coverage to pay compensation. The insurance policy must cover compensation claims for work-related injuries or diseases. In cases where the employer fails to obtain such insurance, they risk being fined up to 100,000 Kenyan shillings or face imprisonment for up to 3 months. For every day that the employer continues to contravene this rule after conviction, they may incur an additional fine of 10,000 Kenyan shillings per day.

3. Certain employers may be exempt from maintaining insurance if they can provide security approved by the Minister, which guarantees coverage of any potential liabilities to employees up to an agreed amount​.

4. 2. Registration of Employers: Section 8 of The Work Injury Benefits Act of 2007.

5. Employers who operate multiple workplaces or distinct types of businesses may need to register separately for each of them, ensuring that every employee is adequately covered. Failure to register or notify changes is treated as a legal offense​ .

6. 3. Employer to Keep Records: Section 9 of The Work Injury Benefits Act of 2007

7. If the employer ceases business operations, they must inform the Director before doing so. Any employer who fails to maintain such records or does not notify the Director commits a legal offense that could lead to penalties​ .

8. 4. Duty to Provide Safe Work Conditions : While not explicitly under "preliminary obligations," the Act generally implies that employers are responsible for maintaining safe working conditions and ensuring that employees are not exposed to unnecessary risks. This duty is implied in the need for medical care, insurance, and compensation mechanisms. In case of a work-related accident or illness, the employer is responsible for immediately reporting the incident to the relevant authorities and ensuring that the injured employee receives proper medical aid . This forms part of their broader obligations under occupational safety laws​ .

9. 5. Failure to Fulfill Obligations : Employers who fail to adhere to these obligations can face criminal penalties , including fines and imprisonment. Specifically, the law provides for fines for failing to keep accurate records, not registering with the Director, or not obtaining the necessary insurance. Furthermore, if an employer continues to breach the law even after being convicted, they face additional fines per day of non-compliance​.

10. Importance of Compliance : These preliminary obligations ensure that employers take proactive measures to protect their workforce. Insurance, proper registration, and record-keeping ensure that employees are covered in the event of an accident, and that compensation claims can be settled efficiently. Non-compliance not only exposes the employer to legal risks but also leaves employees vulnerable in the case of workplace injuries or diseases.

11. In summary, these obligations emphasize the employer’s duty to safeguard employee rights, mitigate risks through insurance, and maintain transparency through record-keeping and proper business registration. This creates a structured system to handle work-related injuries and diseases in compliance with Kenyan law.

12. PART IV: REPORTING OF ACCIDENTS

13. Notice of accident by employee to employer S.21 Written or verbal notice of any accident provided for in section 21 which occurs during employment shall be sent to the Director within twenty-four hours of its occurrence in the case of a fatal accident.

14. Notice of injury or accident by employer to Director. S.22 An employer shall report an accident to the Director in the prescribed manner within seven days after having received notice of an accident or having learned that an employee has been injured in an accident .

15. An accident includes any injury reported by an employee, to his employer, if the employee when reporting the injury, alleges that it arose out of and in the course of his employment and irrespective of the fact that the employer is of the opinion that the alleged accident did not so arise out of and in the course of employment An employer shall, at the request of an employee, furnish the employee, with a copy of the notice of the accident furnished by the employer to the Director in respect of a claim for compensation by such employee or dependant . An employer who fails to comply with subsection (1) commits an offence. The provisions of this section do not prevent an employee from reporting an occupational accident or disease to the Director at any stage.

16. Inquiry by Director S.23

17. Particulars in support of claim S.24 Injured employee or his dependant, shall, at the request of the employer or Director, furnish such information and documents as may be prescribed or as the employer or Director may request. An employer shall, within seven days after having received a claim, medical report or other document or information concerning such claim, submit the claim, report, document or information to the Director.

18. Employee to submit to medical examination S.25 An employee who claims compensation /compensation has been paid /is payable, shall when required by the Director / employer, after reasonable notice, submit himself at the time and place mentioned in the notice to an examination by the medical practitioner designated by the Director. If, in the opinion of any medical practitioner, an employee is not capable of travelling to be examined by the designated medical practitioner, the employee shall inform the party requiring the examination thereof or cause him to be so informed, and the designated medical practitioner shall then examine the employee at a time and place as agreed upon. An employee shall be entitled at his own expense, to have a medical practitioner of his choice present at an examination by a designated medical practitioner.

19. Claim for compensation S.26 A claim for compensation in accordance with this Act shall be lodged by or on behalf of the claimant in the prescribed manner within twelve months after the date of the accident or, in the case of death, within twelve months after the date of death. If a claim for compensation is not lodged in accordance with subsection (1), the claim for compensation may not be considered under this Act, except where the accident concerned has been reported in accordance with section 21.

20. Lapse of right to benefits S.27 A right to benefits shall lapse if the accident is not reported to the employer within twelve months after the date of such accident. Notwithstanding the provisions of subsection (1), the failure to report an accident to an employer as required in subsection (1) is not a bar to compensation if it is proved that the employer had knowledge of the accident from any other source.

21. PART V COMPENSATION

22. Compensation for temporary total or partial disablement S.28 ( 1). Temporary total disablement that incapacitates the employee for three days or longer is entitled to receive a periodical payment equivalent to the employees ’ earnings, subject to the minimum and maximum amounts fixed by the Cabinet Secretary from time to time, after consultation with the Council. (2). Compensation for temporary partial disablement shall consist of a proportionate amount of the periodical payment calculated as specified in subsection and made for as long as the temporary disablement continues, but not for a period that exceeds twelve months. (4). Employees are not entitled to receive a periodical payment during any period in which the employee is receiving full pay, as provided for in the Employment Act , or any other law or contract of service the payment received are otherwise would have earned.

23. Expiry of compensation for temporary total or partial disablement expires S.29 upon the termination of the disablement or if the employee resumes work or awarded compensation for permanent disablement. May be awarded additional compensation for temporary, total or partial disablement if— The disablement of the employee concerned recurs or the employer’s health deteriorates; or the employee receives further medical aid necessitating further absence from his employment, provided that such aid will reduce his disablement.

24. Compensation for permanent disablement S.30 Calculated based on ninety-six months earnings subject to the minimum and maximum amounts.Injury is sustained as specified in the first column of the First Schedule. Injury sustained not specified in the First Schedule which leads to permanent disablement, payments will be made with regards to opinion of a medical doctor. No payment for temporary disablement in accordance with the provisions of section 29 shall be deducted from compensation payable under this section.

25. Amendment of First Schedule S.31 done within 60 days and published in gazette . permanent disablement of employee in training S.32 - Earnings of the employee shall be calculated based on what would normally have been entitled if at the time of the accident the employee had been performing the same work as a person in the same occupation, trade or profession with five years’ experience.

26. Amount of compensation in case of death S.34- Payments to be made in accordance with the Third Schedule. Purposefully, when the dependant is deemed to have been wholly financially dependent upon the employee at the time of the accident, unless the contrary is proved. The employer is liable to pay reasonable expenses for the funeral of the deceased employee subject to the maximum amount determined by the Cabinet Secretary, after consultation with the Council.

27. Payment of compensation S.36- done to the employer in a manner that Director deems fit. - applied to the advantage of the employee or the dependants of an employee; -paid to the Public Trustee to be applied for the benefit of the dependants of a deceased employee. On the death of an employee the unpaid balance of any compensation awarded to the employee does not form part of the employee’s estate and shall be paid to the employee’s dependants as specified in the Third Schedule. Where there is no dependant , the Director may authorise payment of the balance of the compensation to the estate of the deceased.

28. Manner of calculating earnings S.37- t he earnings of an employee are deemed to be the monthly rate at which the employee was being remunerated by the employer at the time of the accident, including. -the value of any rations, living quarters or both supplied by the employer to the employee to the date of the accident or report of disease. -allowances paid regularly; and any overtime payment or other special remuneration of a regular nature or for work ordinarily performed,but excluding— ( i ) payment for intermittent overtime; (ii) payment for non-recurrent occasional services; (iii) amounts paid by an employer to an employee to cover any special expenses; and (iv) ex-gratia payments whether by the employer or any other person

29. PART VI – OCCUPATIONAL DISEASES

30. Compensation in respect of scheduled and unscheduled diseases S.38 Contracts of diseases specified in the Second Schedule that arose out of and during the employee’s employment; or any other disease that arose out of and in the course of the employee’s employment. An employee who contracts a disease in the circumstances contemplated in subsection (1) is deemed to have contracted an occupational disease and is entitled to compensation as if the disablement caused by the disease had been caused by an accident. Employee contracting an occupational disease resulting in permanent disablement and the disease is aggravated by another disease, a medical practitioner may, in determining the degree of permanent disablement have regard to that other disease if it is equitable to do so.

31. Presumption regarding cause of occupational disease S.39 An occupational disease specified in the Second Schedule was employed in any work mentioned in that Schedule in respect of that disease, it shall be presumed, unless the contrary is proved, that the disease arose out of and in the course of his employment. Calculation of compensation -i n accordance with the provisions of section 35— at the time of the commencement of the disease; or such earlier date as a medical practitioner may determine, if the employee was suffering from the disease at an earlier date, whichever earnings are more favourable to the employee.

32. Notice of occupational disease by employee and employer S.41 An employee shall as soon as possible after the commencement of an occupational disease give written notice thereof to the employer or to the employer where the employee was last employed, and in the prescribed manner to the Director. An employer shall, within fourteen days after receiving notice or learning of the employee occupational disease, report such disease, in the prescribed manner to the Director, irrespective of whether the employer may believe the employee did not contract such disease in employment or contracted it in the employ of a previous employer. An employer who fails to comply with the provisions of subsection (2) commits an offence. Date of occupational disease The commencement of an occupational disease is deemed to be the date on which a medical practitioner diagnosed that disease for the first time or such earlier date as the medical practitioner may determine if it is more favourable to the employee.

33. Appointment of medical advisory panels S44. The Director may, after consultation with the Council and in consultation with the Director of Medical Services, appoint medical advisory panels which shall consist of such members as may be necessary to— assist regarding the diagnosis of occupational diseases in individual cases. Advise the Director regarding— ( i )the inclusion of occupational diseases in the Second Schedule; and (ii)general policy concerning the diagnosis of, and disablement as a result of, occupational diseases.

34. A member of a medical advisory panel shall be paid the prescribed remuneration, travelling and subsistence allowances out of the funds set aside for that purpose by Parliament. The Director shall designate a member of a medical advisory panel as Chairperson of the panel.The members of a medical advisory panel shall hold office for such period and on such terms as the Director, after consultation with the Cabinet Secretary may determine. The Director may, at any time after consultation with the Council, terminate the appointment of any member of a medical advisory panel who has been guilty of misconduct or neglect of duty, or is not able to perform his functions in accordance with the provisions of this Act.

35. Part vii-Medical aid

36. First Aid Responsibilities Section 45 dictates that the employers are mandated to provide and maintain first aid appliances and services for employees in case of accidents, as specified by relevant laws pertaining to their trade. non-compliance with this requirement is classified as an offence. the minister may exempt certain employers or categories from these obligations after consultation with the council

37. Conveyance of injured workers S.46 Section 46 provides that In the event of an employee injury necessitating transportation to a medical facility or back home, employers are required to arrange for this conveyance. Failure to do so also constitutes an offence. Coverage of Medical Expenses S.47 Section 47 provides that the Employers are responsible for covering reasonable medical expenses incurred by employees due to work-related accidents. This includes costs for dental and medical treatments, nursing services, necessary medications, travel expenses related to treatment, and maintenance of assistive devices like artificial limbs. Damage to such devices is considered an injury, and the sufficiency of the medical aid provided is subject to Council evaluation.

38. Medical Reporting S.48 Section 48 further requires medical practitioners to submit a report within fourteen days of examining an injured employee or diagnosing an occupational disease. If the employee has left their job, the report must follow a specific format. Fee Regulations S.49 Medical aid fees for employees are to be determined by the Minister, in consultation with relevant medical associations. Claims exceeding these prescribed fees cannot be made against employers. This is provided under section 49 of the Act. Prohibition of Employee Contributions Employers are prohibited from requiring any financial contribution from employees towards medical aid costs. Any violation results in legal consequences, including possible repayment orders from the Director. This is provided under section 50 of work injuries benefits Act.

39. Appeals Section 51 provides that Individuals dissatisfied with the Director’s decisions can lodge an objection within sixty days, which must include specific details about the circumstances and desired outcomes. Section 52 further dictates that The Director is obligated to respond within fourteen days. If the objection remains unresolved, an appeal can be taken to the Industrial Court within thirty days of receiving the Director’s reply.

40. Miscelleneous provisions Director’s Role S.53 Under section 53, The Director of Work Injury Benefits is tasked with overseeing the implementation of this Act, including registering employers, ensuring compliance with insurance obligations, and handling accident reports and investigations. Support staff will assist the Director in these duties. Offences and Penalties S.54 Section 54 provides that False statements related to compensation claims or required returns are considered offences. Penalties include fines up to 200,000 shillings or imprisonment for up to one year for violations. Additionally, specific fines are imposed for failing to comply with regulations regarding returns or providing false information.

41. Regulations S.56 Section 56 provides that The Minister has the authority to create regulations to enhance the Act’s effectiveness, which includes setting procedures, forms, and fees. Non-compliance with these regulations can result in fines, with company officials potentially held accountable for corporate offences unless they prove ignorance. Repeal and Savings The previous Workman’s Compensation Act has been repealed, but any regulations from that Act remain effective under the new Act. Claims related to accidents or diseases occurring before the new Act's commencement are treated as if filed under the current legislation. This is provided under section 57 and 58 of work injuries benefits Act. This comprehensive framework ensures that employees are adequately supported through medical aid and offers a structured approach for addressing grievances and maintaining compliance with safety and medical provisions in the workplace.

42. SCHEDULES OF THE WORK INJURY BENEFIT ACT OF 2007. The law in the Work Injury Benefits Act of 2007 provides that there should be compensation of workers who suffer injuries, disabilities, or death because of work-related accidents. The Work Injury Benefits Act seeks to protect employees by ensuring that they receive sufficient compensation, security and medical treatment for occupational injuries that had been obtained during their line of work this makes employers liable and accountable for maintaining safe working conditions and providing for the workers a suitable and conducive environment for work. There 3 schedules in this Act which include:

43. The First Schedule: Degree of Disablement .

44. The First schedule is divided into parts which are: Part A: Death Death because of an accident is compensated at 100% disablement .

45. Part B: Injury (General) Loss of hand and foot above certain amputation sites or Permanent bed-ridden condition are also equivalent to 100% Disablement. Example: Loss of thumb and four fingers of one hand is equivalent to loss of hand.

46. Part C: Injury to Upper Limbs Loss of both hands and arms above certain points is considered 100% Disablement Examples: Loss of hand at wrist: 60% . Loss of four fingers and thumb: 60% . Loss of one phalanx of thumb: 10% .

47. Part D: Injury to Lower Limbs Loss of both feet above site of symes amputation or loss of both legs at higher site is considered 100% Disablement : Examples: Loss of leg at hip or below hip: 70% . Loss of foot at ankle joint: 25% . Ankylosis of knee joint: 25% .

48. Part E: Injury to Eyes 100% Disablement: Total loss of sight. Loss of the remaining eye in one-eyed employees. It is also duly to note that for the purposes of the first Schedule, a one-eyed employee means an employee who has no sight in one eye. Other vision losses range from 15% to 100% based on the degree of visual impairment.

49. Part F: Injury to Hearing

50. Part G: GENERAL Except where otherwise expressly provided, the following conditions shall apply to all assessments in th e First Schedule- Total permanent loss of use of limb shall be treated as loss of limb. When there are two or more injuries the sum of percentages for such injures may be increased. The Director shall prescribe the compensation criteria for Musculoskeletal disorders and occupational injuries not elsewhere covered.

51. The Second Schedule: Occupational Diseases

52. Chemical hazards: Poisoning from harmful substances such as lead, mercury, arsenic, or benzene. For example , workers exposed to lead in certain manufacturing industries are entitled to compensation if they develop lead poisoning. This schedule recognizes the importance of protecting workers from not only physical injuries but also illnesses that may develop over time because of their job.

53. Biological hazards: Infectious diseases like anthrax, tuberculosis, or brucellosis that workers can contract from handling animals or animal products. Example: In the case of biological hazards, Workers in the healthcare sector, laboratories, or animal husbandry may be exposed to tuberculosis bacteria. Those working with infected patients or animals are particularly at risk. A worker who contracts TB as a direct result of their job is entitled to compensation, which could include coverage for medical care and potential disability if the disease prevents them from continuing to work.

54. Physical hazards: Conditions like heat cataracts or decompression sickness, which arise from working in extreme conditions (e.g., high temperatures or underwater). Example: Heat cataract which is caused by frequent or prolonged exposure to rays from molten or red-hot material. The Second Schedule then highlights that there must be: Connection Between Disease and Work for a worker to claim compensation under Work Injury Benefits Act of 2007 , the disease must be directly linked to their employment. This connection is essential in determining whether the disease qualifies as an occupational illness for compensation.

55. The Third Schedule: Dependent’s Compensation The Third Schedule provides for the compensation of dependents of workers pursuant to s34(1) of Work Injury Benefits Act of 2007 which provides that: “If an employee dies as a result of an injury caused by an accident, compensation shall be paid to the dependents of the employee in accordance with the provisions of the Third Schedule, subject to the maximum and minimum amount determined by the Minister after consultation with the Council.” .

56. The Third schedule then provides specific percentages to which the dependants of the workers will be compensated, these percentages are: One child ― 12.5% of workman’s allowance. Two children ― 17.5% of workman’s allowance. Three children ― 22.5% of workman’s allowance. Four children ― 27.5% of workman’s allowance. Five children ― 32.5% of workman’s allowance. More than five children ― At a rate to be determined by the Director