EMPLOYERS LIABILITY DURING COVID 19
Robert Kennedy, partner offers some practical guidance about likely employers’ liability claims that may stem from the coronavirus and highlight the key elements of such a claim, including employers duties, risk assessments and causation.
There are two key pieces of legislation to consider. A breach of either of these Acts could give rise to civil liability for an employer.
Most employers will be already be familiar with the provisions of the Safety, Health and Welfare at Work Act 2005.
It imposes a general duty on employers to ensure “so far as is reasonably practicable” that the safety, health and welfare of their employees is safe-guarded.
The main responsibilities are to provide:
- a safe workplace;
- a safe method of work;
- safe equipment;
- appropriate supervision and training;
- protective equipment, where appropriate; and
- provision and maintenance of facilities and arrangements for the welfare of employees at work.
This legislation applies to employees working on site but also to employees working from home.
In the event of a prosecution, penalties for breaches of health and safety obligations vary up to maximum of €3m and/or two years imprisonment, per offence, on criminal conviction. A company’s directors, managers or officers can be prosecuted personally if they mismanaged health and safety procedures.
The Health Act 1947 is a key piece of legislation in the context of the current health crisis. This Act contains the legal force behind our current restriction regulations.
Section 43 of the 1947 Health Act is one of its lesser known provisions, which was in place before this crisis. A person can initiate civil proceedings for damages if the other person failed to take actions required by him pursuant to Regulations which result in the first person being infected with a disease. The courts will apply a rebuttable presumption that the person who failed to take the actions required caused the first person’s infection.
Therefore any breach of the Health Act or the regulations by an employer could lead to civil liability if their failure resulted in a COVID-19 infection.
An employer owes a common law duty of care to their employees under the law of negligence. Someone who has control over another (such as an employer), could be liable if they knowingly, recklessly or negligently permit or require their employees to perform acts which lead to an infection.
Take this example – employees are working in an essential manufacturing plant. Their employer provided extra hand-washing facilities and hand sanitiser but does not adapt workstations to allow for social distancing. An employee then contracts COVID-19 and it spreads throughout the workforce.
The courts will consider an employer to have discharged their duty of care where they did what a reasonable and prudent employer would have done in the circumstances. There is no simple answer to “what is enough” – it will all come down to the individual circumstances of each case.
The court will look at what other employers in the industry did (did other similar manufacturing plants adapt their workstations?). They will look at the steps that the employer did take (i.e. providing extra hand-washing facilities and hand sanitiser) and consider whether that was sufficient to discharge the risk and protect their employees.
In the case of a confirmed COVID-19 infection in the workplace, damages could be awarded for severe pain and suffering. There is also a possibility that damages could be awarded where an employee develops a fear of contracting COVID-19 while working in an unsafe environment. The circumstances where this will arise are limited – the fear must be rational and medical evidence must show it was probable that the disease would be contracted.
WHAT CAN YOU DO?
Non-essential workers have been directed by the government to stay at home. Companies in both the essential and non-essential sectors have now made the transition, in part or completely, to working from home.
If your employees cannot work from home and they must still come to work there are some measures to consider to ensure their safety:-
- Display the HSE posters and promote good hand and respiratory hygiene.
- Redesign workstations to ensure social distancing is maintained.
- Review existing risk assessments in light of new working practices.
- Provide training based on any new procedures implemented.
- Supervise employees to ensure the requirements are adhered to.
- Ask for feedback on the new procedures and make changes if necessary.
- Introduce a rota system to reduce physical contact at the workplace.
- Provide alcohol-based hand sanitising dispensers and hand-washing facilities in prominent places around the workplace.
- Consider whether Personal Protective Equipment (gloves, face masks) is required. If it is, provide training on how to wear, remove and dispose of it safely.
- Advise employees to stay at home if they experience any COVID-19 symptoms or have been in contact with a confirmed case.
- Provide employees with a letter confirming they are required to travel to work which they can produce to Gardai if stopped.
There are plenty of useful resources online which are worth reading and considering in the context of your workplace.
The National Standards Authority of Ireland has provided a number of questionnaires and checklists to deal with workplace defence, exposure and recovery.
The HSA website contains posters and signs which can be printed off and displayed throughout the workplace, along with FAQs for both employers and employees.
The World Health Organisation guide to preparing your workplace for COVID-19.