Employers have a legal duty of care to ensure their employees are reasonably safe whilst at work. This duty includes providing employees with a safe place of work, a safe way of working, suitable equipment to work with, competent colleagues, and adequate supervision while they work. Where an employer fails to satisfy its duties to an employee, the employer could be liable for any injury and/or loss that occur as a result. The most common potential risks include falls and slips, defective equipment and machinery and exposure to dangerous chemicals. However, the current coronavirus pandemic (“COVID-19”) has led to new risks for employees and a resulting need for employers to manage these new risks carefully.
Through the Disaster Risk Management (Enforcement Measures) Orders, the government has implemented various measures to reduce the risk of spread of COVID-19 in general and within the workplace, including: the temporary closure of some BPOs, implementation of curfews, mandating that persons 65 and over stay at home, mandating the wearing of masks in public, asking employers to have employees work from home, where possible and requiring that social distancing be practiced. Accordingly, employers should keep abreast of the latest government advice and should carry out and continually update risk assessments in an effort to minimise the risk of spread of COVID-19 within the workplace.
While it remains to be seen what will happen in any subsequent litigation against employers for a failure to adequately protect their employees against the risk of infection, the following acts or omissions could lead to employees having a cause of action against their employers:
i. Failure to follow social distancing guidelines
Where working from home is not possible, employers should make every effort to comply with the social distancing guidelines set out by the government. The government has indicated the need to avoid crowding and to minimise the risk of spread of COVID-19 by maintaining a distance of at least 6 feet between individuals, where possible. This advice applies to the workplace, and should be implemented inside the workspace, as between employees, and where staff may need to interact with customers.
ii. Failure to prevent infected employees from coming into work
The government guidelines expressly indicate that where a person develops symptoms of COVID-19 (such as a continuous cough and/or a high temperature), that such a person should self-isolate for a period of 14 days. Accordingly, an employee who displays symptoms of COVID-19 should be sent home to facilitate isolation. If an employee lives in a household where someone is experiencing symptoms of COVID-19 or has been diagnosed with COVID-19 or has come in contact with a person who has COVID-19 such an employee should also be allowed to go into isolation to minimise the risk of spread.
In this regard, employers are encouraged to be proactive and not merely rely on employees to report symptoms but can make attempts at screening by utilising such methods as temperature checks.
iii. Failure to protect vulnerable employees
The government has also indicated that employees who are vulnerable, due to age or underlying conditions, should be supported as they follow the recommendations on social distancing and shielding . If it is possible for work to be done from home, it would seem reasonable that vulnerable employees be given priority when allocating such tasks. If this is not possible, there may be a duty to consider if that employee’s duties can be restructured so that even if they are required to be physically present at work, the chances of them coming into contact with customers or fellow employees are minimized.
Likelihood of success of employee claims against their employers
The COVID-19 pandemic is an unprecedented situation and it remains to be seen whether any claims of this nature will be successful against employers. To succeed in a claim under employer's liability, the employee has to satisfy a two-pronged test. Firstly, an employee will have to prove that he/she contracted COVID-19 during the course of his/her duties. The employee would then have to prove that it is more likely than not that he/she contracted the disease because of his/her employer's failure to take the necessary precautions and implement the requisite measures. The difficulty in bringing a claim against an employer where an employee has contracted COVID-19 is likely to be establishing causation. That is to say, given how widespread the virus has become, it will be very difficult to establish that the virus was contracted in the workplace rather than anywhere else and that it resulted from the employer’s failure to adopt the necessary measures. The likelihood of success against an employer under the existing laws is therefore low.
Parliament is however in the process of introducing new legislation entitled the Occupational Safety and Health Act (“OSHA”), which aims to be more far reaching in its jurisdiction than the present laws which apply to employees’ safety and would be useful in protecting employees in this pandemic. The proposed Act imposes a duty on employers to take such reasonable care to provide and maintain a place of work that is void of risks to the safety and health of their employees. It also imposes a duty on employees to take reasonable care for their own safety and health and the safety and health of their colleagues. The Act further captures some of the general duties of care owed by an employer such as the duty to provide a safe place of work. Under OSHA, failure to comply with any of the imposed duties is an offence. Where the failure to comply is a result of recklessness, the burden of proving that there is a reasonable excuse for the breach rests on the employer, whereas under the existing laws the burden rests on the employee.
An Act of this nature will likely encourage employers to take and implement all necessary measures to ensure and secure the health and safety of its employees. While we await its passage into law, it is hoped that employers will take all reasonable steps to protect their employees