COVID-19: The obligations on employers to protect its employees

As has been highlighted throughout the various posts in the KOD Lyons COVID-19 blog series, there have been a number of unprecedented measures taken by various state bodies across society to ensure the prevention of the spread of coronavirus.

The purpose of this short blog post is to offer an insight into some of the likely legal actions and issues that may arise from the current pandemic and to give a very general overview of the types of duties owed by employers to employees even after the pandemic slows or eventually stops.

Duties to employees in Common Law

An employer owes an employee a common duty of care under the law of negligence, and breach of that duty of care can result in liability for any losses that were reasonably foreseeable. The duty to provide a reasonably safe workplace and to take reasonable measures to ensure employee safety from any obvious or foreseeable health risks flow from this duty of care and that it is an implied term of any employer/employee relationship.

While COVID-19 presents a health risk to employees and other persons at a workplace the application of the abovementioned principles it is questionable about how far employers must go in implementing protection measures as a matter of practicality. Further, in order to establish liability at common law, an employee must not only prove breach of duty but also that the breach made a material contribution to the injury sustained.

Infectious Diseases – Statutory Duties 

In addition to a general duty of care towards employees imposed by common law, there are a number of statutory protections which apply in addition to common law duties of care.

Safety Health and Welfare at Work Act 2005

The Safety, Health and Welfare at Work Act 2005 imposes general duties on employers to have a safe place of work with appropriate training and equipment and to have due regard to ensure the safety, health and welfare of employees. Sections 19 and 22 of the Act require a risk assessment be performed and that if necessary, on foot of that risk assessment, to implement appropriate health surveillance measures. Employers need to be aware that this is an evolving situation which needs to be monitored and will be very much vary depending on the specific work environment and health risks presented.

Clearly a higher onus to employees who are in higher risk environments such as in a health care context.[1] For other workplaces where there is a lower potential for exposure to COVID-19, the Health and Safety Authority has also issued advice and responses to FAQs for employers and employees regarding the mitigation health risks presented by COVID-19 which may offer a practical guide to employers and employees in attempting to safely continue in work.[2]

The FAQs include guidance notes on issues such as the necessity to provide employees with facemasks[3] as well as obligations to implement precautionary measures to remote workers. Employers and employees are also advised to follow the advice of the Health Service Executive and The Health Protection Surveillance Centre which is being regularly updated.

 

Health Act 1947 and Potential Liability for Employers

The Health Act 1947 (“1947 Act”) is a key piece of domestic legislation in the context of the current health crisis. Its existing public health provisions have already been enhanced with the enactment of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 which grants the Minister for Health broad powers to make regulations for preventing, limiting, minimising or slowing the spread of COVID-19.

Section 30(2) of the 1947 Act appears, at least on its face, to impose duties on employers to take reasonable precautions to prevent the spread of infectious diseases. COVID-19 is to be considered an “infectious disease” for the purposes of Section 30(2) given that it was listed as an infectious disease for the purpose of the 1947 Health Act Regulations which were implemented in February of this year.

Section 43 of the 1947 Act anticipates that civil proceedings for damages can be brought for breach of the duties imposed under Section 30(2) and notes that where damages have been suffered by an individual by reason of the infection, a court is required to presume that the infection was the direct result of a failure to take precautions unless this can be rebutted on the evidence by an employer. This is a departure from the common law principles outlined earlier in this blog post where, in order to establish liability, it is necessary that that an employee not only prove breach of duty by an employer, but also that the breach by the employer material contributed to the injury sustained.

The 1947 Act potentially opens up claims against employers and other organisations who may have failed to take appropriate or timely steps to prevent the spread of infection and there is an onus on employers to follow and adhere to the up to date public health advice.

Conclusion:

Employers need to ensure that they sensible steps to discharge their duty of care and to document their assessment and adopted policies to ensure employee well-being. Being able to demonstrate that they have considered the risks carefully and took sensible steps to mitigate those risks will be crucial evidence in defence of any subsequent claim. If someone becomes infected at work in the absence of evidence of such steps having been taken, the employer is potentially vulnerable to being found in breach of duty and liable for losses arising from this breach. Does this mean therefore that the lack of appropriate PPE for frontline workers in situations of demonstrable risk mean that employers and the State could find themselves liable to employees adversely affected? This and other issues will inevitably be analysed in the time ahead.

Should you require any specific information on the matter please do not hesitate to contact Stephen Kirwan of this office at stephen.kirwan@kodlyons.ie

Stephen Kirwan

 

[1] https://www.hsa.ie/eng/news_events_media/news/news_and_articles/covid_19_–_advice_for_employers.html

[2] https://www.hsa.ie/eng/News_Events_Media/News/News_and_Articles/

[3] https://www.hsa.ie/eng/news_events_media/news/news_and_articles/covid-19_additonal_hsa_faqs.html