How To: Meet Safety, Health and Welfare at Work Legal Obligations in the COVID-19 EraPosted in : How To... with Dr. Gerry McMahon on 30 April 2020
Recent media coverage of a class action lawsuit against an Austrian ski resort for negligence amidst the COVID-19 crisis will serve as a warning to employers. This warning may now be more relevant to the frontline, with fatalities and about 25% of confirmed virus cases in Ireland to be found in the health sector. However, looking beyond the frontline, toward a phased re-opening of ‘non-essential’ work and life as we knew it, issues of safety, health and welfare at work abound. Hence, it is notable that for this very reason the national Labour Employer Economic Forum (LEEF) is now looking toward the introduction of a ‘national protocol’, that will establish principles and practical measures designed to address such risks at work.
From a legal perspective, the foundation stone in any health and safety initiative is that employers have a ‘duty of care’ toward their staff. This duty was recently emphasised in the case of Wayne Walker, who was given a 6-month custodial sentence in Gorey District Court last year for breaches of the Safety, Health and Welfare at Work Act 2005. Despite Walker’s ‘heroic efforts’ to save a drowning crew member, it was held that the accused was the captain of a fishing vessel involved in a fatal accident and the evidence put forward by the Health and Safety Authority (HSA) was persuasive, including the facts that:
- The crew were not wearing life jackets and had not been instructed that there was a legal obligation to wear them;
- There was a failure to follow any ‘man overboard’ procedure and
- No emergency drills had ever been undertaken.
Whilst this was the first ever custodial sentence dispensed under the Act, it is also notable that in the same year a fine of €500,000 was imposed on a manufacturer of concrete and quarry stone, following a guilty plea to three separate breaches of health and safety legislation, whilst in June 2019, a utility contractor received a fine of €300,000 following a guilty plea to a breach of the same legislation.
The main legislation providing for the health and safety of people in the workplace is the Safety, Health and Welfare at Work Act 2005 (as amended). It provides for a maximum fine of €3m and 2 years in jail for breaches and applies to all employers, employees (including fixed-term and temporary employees) and self-employed people in their workplaces. The Act establishes rights and imposes obligations on both employers (at Section 8) and employees (at Section 13).
Under Section 8 of the Act, the employer has a duty to ensure employees’ safety, health and welfare at work, as far as ‘is reasonably practicable’. In order to prevent workplace injuries and ill-health, the employer is required, amongst other things, to:
- Provide and maintain a safe workplace which uses safe plant and equipment.
- Prevent risks from the use of any article or substance and from exposure to physical agents, noise and vibration.
- Prevent any improper conduct or behaviour likely to put the safety, health and welfare of employees at risk.
- Provide instruction and training to employees on health and safety.
- Provide protective clothing and equipment to employees.
- Appoint a competent person as the organisation’s Safety Officer.
It is also relevant to the current climate that the HSA has advised operative or ‘essential’ employers to follow the latest public health advice, reminding them that they must identify measures to mitigate the risk of COVID-19 infection and implement suitable control measures. This direction is largely derived from the aforementioned 2005 Act, whereunder every employer is required to carry out a risk assessment of their workplace. This assessment is designed to identify the hazards present in the workplace, assess the risks arising from these hazards and identify the steps to be taken to deal with them. Arising therefrom, an employer must prepare a safety statement based on this risk assessment. Notably, the HSA has published a comprehensive guide to risk assessments and safety statements (see Guide to Risk Assessments and Safety Statements.pdf).
The ‘safety statement’ may be described as a written action programme for safeguarding the health and safety of those at work. That is, it serves as the basis for the organisation’s management of health and safety and should set out an action programme designed to protect staff while they are at work. It is normally drafted after having identified the hazards and assessed the risks that may be present at work. The statement should also identify those in the workforce who are responsible for safety issues and employees should be given access to the statement. Notably, given the current COVID-19 climate, it is also mandatory for employers to review it on a regular basis.
Given this current climate and the widescale recourse to homeworking, it is relevant that these duties extend to the employee’s workspace where they work from home. That is, with homeworking, one must consider the duty of care as it applies to domestic workspaces, in the same way as it does to workspaces at the workplace.
The relevant duties can be summarised as follows:
- Carry out the risk assessment and put the consequent recommendations in place.
- Arrange and conduct all work activities so as to ensure, as far as reasonably practicable, the safety, health and welfare of the staff.
- Plan, maintain and provide a safe system of work.
- Provide safe equipment. Subject to the risk assessment results, this may include the provision of personal protective equipment (PPE).
- Training, information, instruction and supervision must be provided to employees in respect of health and safety matters.
- Prepare and implement an emergency plan.
In line with Section 19 of the aforementioned 2005 Act, the HSA instructs employers to adopt a step-by-step approach to risk assessment and the preparation of the safety statement. These steps may be summarised as follows:
Step 1: Identify Hazards - a hazard is defined as anything with the potential to cause harm (e.g. COVID-19, falls, trips, vehicle movement, fire).
Step 2: Assess Risks - having identified the hazards, one assesses the risks arising therefrom (i.e. the likelihood of the harm occurring and the severity of the consequences if it does). Categorising the risks, from high to low, allows one to prioritise the necessary measures.
Step 3: Select & Apply Control Measures – with the hazards and their associated risks categorised, one then selects the appropriate control measures to eliminate the hazards and to reduce the risks (e.g. workplace design, PPE, training).
Step 4: Draft the Safety Statement – this statement should: (i) List the control measures to be taken to avoid the risks; (ii) Name those responsible for implementing and maintaining the measures; (iii) Contain plans to deal with an emergency or any serious and imminent risks and (iv) List the names of the safety representatives (if any).
Section 19 of the 2005 Act provides for a review of the risk assessment (and as a consequence, of the safety statement), should there be ‘a significant change’ – as with the COVID-19 crisis. One is also required to bring the safety statement – at least annually - to the attention of employees and other persons at the place of work who might be exposed to any of the specific risks as detailed therein.
Step 5: Record & Review – the statement should be updated annually, as conditions change and new risks are identified. Related thereto, one should appoint one or more ‘competent persons’ to advise on these steps and to play a key role in the management of health and safety.
Going Forward – Protective Measures
The Irish Business and Employers’ Confederation’s (IBEC) Chief Executive recently advised members that LEEF ‘is the crucial mechanism through which to plan, control and communicate the reopening of the economy’.Early indications are that this Forum’s protocol will provide for management and employee/union reps. to ensure implementation of and adherence to the protocol’s provisions. This protocol is likely to provide for:
- Updated risk assessments and safety statements.
- An online or onsite COVID-19 induction course.
- Completion of an appropriate customised employer-specific COVID-19 questionnaire/self-declaration form, to be processed prior to a return to work.
Clearly, alongside the LEEF, the HSA will play a key role in unfolding events. Should it come to matters of prosecution, key considerations will include whether the employer’s measures were relatively ‘reasonably practicable’, the extent of the offences and their impact, the extent of adherence to official guidelines, the status of any ‘Improvement Notice’ issued by the Authority and the strength of any respondent’s defence vis-à-vis the prospect of securing a conviction.
The LEEF forum, in tandem with the State’s health agencies, will be driving the workplace health and safety agenda going forward. In addition to increasing test capacity, an immediate priority as a consequence of COVID-19’s global outbreak, is meeting the demand for PPE and medical devices, such as face masks, gloves, protective coveralls, eyewear protection and surgical masks. The official guidelines stipulate that all health workers wear surgical masks when providing care within 2 metres of a patient and when interacting with work colleagues for 15 or more minutes. However, characteristic of some such scenarios, Home and Community Care Ireland - the national representative body for home care workers – has found it difficult to source all of the prescribed protective equipment for its staff.
In a phased re-opening of the economy, the onus will be on (all essential and non-essential) employers to identify the risks and to inform employees about such risks. For many, this will entail the wearing of some protective equipment, as provided by the employer (e.g. overalls, headgear, footwear, eyewear, gloves). Notably – and in line with Section 13 of the 2005 Act - employees are under a duty to use such equipment/clothing (see the HSA’s guidelines at frequently asked questions about personal protective equipment).
Health and safety considerations also mean that a ‘new normal’ type workplace is now en route. This is characterised by an array of innovations, including remote or homeworking, staggered work schedules, domestic and foreign travel checks and constraints, face masks, ongoing disinfectant and cleaning regimes, closed bins for hygienic disposals, availability of alcohol-based hand sanitising dispensers, hand wash facilities with social distancing provisions, mandatory staff COVID-19 tests, staff and customer temperature taking, online orders, card payments, expanded pickup and delivery services, on-site visual and audio cues, letters of authorisation enabling travel for the provision of ‘essential services’ and office cubicles (rather than ‘open plan’) with appropriate desk/seating dispersal that maintains the obligatory 2 metres’ distance. Though the 2 metre ‘social distancing’ rule is likely to persist for some time, numerous employers - from hospital emergency departments to meat processing plants – are testifying to the practical problems associated with same.
When it comes to matters of health, safety and welfare at work, employers’ anxieties should be assuaged by the fact that the Irish courts have consistently ruled that employers have discharged their ‘duty of care’ if they have done what a reasonable and prudent employer would have done in all of the circumstances. That is, the onus resides with the claimant employee to prove that their infection/accident was caused by some form of negligence or breach of statutory duty on the part of the employer. Hence, if employers are compliant with applicable health and safety systems and standards, in the event of their employees being affected by events that were completely unforeseeable, the employer will not be deemed to be at fault and their liability insurance will not be exposed or called upon.
However, if the employer is adjudged to be non-compliant, it may give rise to a criminal offence. Directors and senior managers carry particular responsibilities under the aforementioned 2005 Act. Alongside the 1947 Health Act, it imposes obligations in respect of contagious diseases, where it can be shown that offences committed were attributable to neglect, connivance, consent or authorisation on the respondent’s part. Notably, the recently introduced Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 revises the Health Act 1947, giving the Minister for Health the power to make regulations to contain COVID-19. Breaches thereof have criminal consequences, whilst Section 43 of the 1947 Act also enables the award of damages in civil proceedings for infection as a result of a breach of the relevant provisions. It is also relevant that Section 80 of the 2005 Act provides for the personal prosecution of company directors, managers and officers.
Hence, in due course one would expect that many Health Service Executive (HSE) staff will be scrutinising the small print of the ‘Injury at Work Allowance’ circulars and/or the pursuit of ‘No Win No Fee’ personal injury compensation claims. Some will also be casting an eye back to the army deafness personal injury claims process in 1992-2002, that gave rise to 16,500 claims resulting in pay-outs totalling €300m. Others are looking to the UK, where alongside the introduction of a new life assurance scheme for frontline health and care workers, families of frontline National Health Service (NHS) and social care staff that have passed away due to COVID-19 are now entitled to a £60,000 payment. Notably, these pay-outs are not subject to a surrender of one’s right to take legal action.
Whilst some employees may seek compensation under health and safety legislation, consideration will also be given to pursuing such personal injury claims via the Personal Injuries Assessment Board (PIAB), whilst one would also expect demands to be made on the State’s Occupational Injuries Scheme, which (amongst other provisions) covers people who have contracted a disease as a result of the type of work they do. There are also a number of other State benefits available (with associated conditions), that may come into play as a result of COVID-19, including incapacity, disablement, medical care and death benefit.
Though the basic principles associated with health and safety considerations are well known, exactly how these principles will apply to this unprecedented situation remains unclear. Hence, for employers to avoid liability, it’s best to stay on the safe side and to take all of the necessary precautions. The bottom line is that under the law of negligence, employers owe a duty of care to employees. Breach of that duty may result in liability in respect of any losses/damages that were reasonably foreseeable. Given that Covid-19 is unprecedented, there is no actual certainty as to how the courts will apply already well-established principles and laws. However, have no doubt but that the starting point will be a consideration ‘negligence’ and whether the standard of care expected of a reasonable employer was in evidence.
So, it seems like ‘now’ is the right time to update the risk assessments and the safety statements. This will go a long way toward meeting the legal requirement that one has been ‘reasonably practicable’ in exercising all due care when, having identified the hazards and assessed the risks, the necessary protective and preventive measures were put in place. Practical adherence to the HSA’s COVID-19 advice for employers - enabling the introduction of such measures to mitigate the risk of COVID-19 infection and the implementation of suitable control measures - will also go a long way toward freeing up employers to allow them to re-build their business.
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