COVID 19 AND EMPLOYERS’ LIABILITY - Sit Wing Yi Sibly v. Berton Industrial Ltd., FACVNo 3 of 2012 (10.05.2013)

INTRODUCTION  - THE EMPLOYEE’S BURDEN OF PROVING THE CAUSE OF THE COVID 19 AT WORK

The COVID-19 Coronavirus is a matter of acute concern to employers in Hong Kong when returning to full re-opening. As more staff come back to work and do not work from home, “WFH”,  employers do not want the virus to re-activate.  This will mean a second partial or complete lockdown of their business. Plus potential liability to staff for catching COVID-19  or place them under prolonged stress. Employers who bring back just half their staff on alternate days will have similar concerns. Lawyers with inquiries about potential direct or indirect claims for COVID-19 and resultant conditions should read this. 

EMPLOYEES’ COMPENSATION CLAIMS FROM DISEASES CAUGHT AT WORK

Employees can make claims for catching COVID-19 in the course of their employment, provided the employee can establish an “accident arising out of the employment.” There are cases going back to 1900 in the UK where for example miners have caught leptospirosis from rats in a coalmine and scratched their legs and caught the disease. Many successful claims have been brought for non-scheduled diseases caught at work since. E.g. accidents caused in handling bonemeal causing blood poisoning.  Scott v. Pearson 1916, Grant v. Kynoch 1919 AC  765. So catching COVID-19 at work from a coughing fellow employee would fit in these established categories of claims.  COVID-19 is not a Scheduled Disease even for health workers. Maybe it will become so. See Item 50 Schedule 2 of the Occupational Safety & Health Ordinance Cap. 509  (OSHO)  where liability for catching SARS at work is strict.

CLAIMS BASED ON COVID 19 CAUGHT AT WORK

Employees who are dealing with members of the public can catch it, as well as from known contacts at work.  They may make claims either for temporary or permanent resultant disability.  So if an identified customer coughs or sneezes over an employee this may be enough. Likewise, if COVID-19 exists in the workplace when employees return to work, they may have automatic claims if they can prove they caught the virus at work, and nowhere else.  This may be difficult.

CLAIMS UNDER THE FACTORIES & INDUSTRIAL UNDERTAKINGS ORDINANCE CAP 59 – (FIUO) FOR INDUSTRIAL UNDERTAKINGS + OSHO CAP 509 & REGULATIONS

There is a primary duty cast upon all employers to ensure the safety and health of employees under Section 6 and,  as an occupier,  under Section 7 of OHSO. This also applies to independent contractors, “as physical safety is plainly the paramount element of the law’s policy.”  Rainfield Design & Associates Ltd., v. Siu Chi Moon  2000 3 HKCFAR 134@232   

RISK ASSESSMENTS DURING THIS PANDEMIC REQUIRING HEALTH SURVEILLANCE OF EMPLOYEES, AND INDEPENDENT CONTRACTORS ON SITES;

Thus liability in most claims cases will centre on the lack of provision of personal protection equipment (PPE)  masks, hand wipes, hand sanitizers and eye goggles for occupations to members of the public. The availability of and distribution of PPE,  and social distancing in the workplace should be recorded and lack of these will provide employers with problems when claims arise.

CLEANSING OF THE PREMISES AND EQUIPMENT & TOILETS

Obviously the cleansing of premises should have increased, in both depths of cleansing and increase in regularity.  Records should be kept by employers of such increased cleansing routines.  So hazards can be identified.  Leaking and smelly toilets without traps changed, toilet lids fitted where there are none, blocked drains cleaned and regularly disinfected etc. These precautionary measures should be recorded and not left just to the contractor, who may fail to record.

RECORDING OF THE RISK ASSESSMENT REVIEWS

Recording of persons with underlying health conditions for whom contracting coronavirus is more severe

Hong Kong employers tend not to notice those with health conditions, such as diabetes, lung and kidney disease etc.,  These persons who should  WFH at the onset of the virus and should be the last called back.

PLANNING IF AN OUTBREAK HAPPENS, OR HOW TO HELP STAFF IN THE EVENT OF A WIDER OUTBREAK

Mercifully there have been few clusters of infection, mostly confined to a Buddhist temple, family meals in enclosed spaces, restaurants, bars and from returning travellers.  However if the infection rate increases, this could trigger the need for, and higher levels of protection for staff, and/or more prolonged WFH.

ANALYSIS OF THE RESPONSE BY EMPLOYERS

Courts when faced with claims by employees infected at work, or affected by WFH, will be looking at the employers’ responses as the outbreak of the virus progresses.  What might be deemed sufficient steps taken in late January or early February 2020 to provide PPE, cleanse premises and equipment, enforce social distancing, and work at home unless deemed essential, would be viewed differently when at the end of March 2020.  Employers need to check and record they have adopted government advice having regard to the nature of their own business.

HOW IS LIABILITY ESTABLISHED BY AN EMPLOYEE - CAUSATION

 Remember for both ECO and FIUO claims etc.,   an employee just has to prove the employer failed to take reasonable care for his health and safety as employees, and such caused their death, illness or injury.  Or materially contributed to such.   So he or she will have to satisfy the court on the balance of probabilities they caught COVID-19 at work where cross-infection arose.   This may be difficult in the average case, where there may be many other sources of infection, save in cluster cases at work.  

See Hotson v. East Berkshire 1987  AC 750@728H

WILFUL DISREGARD OF EMPLOYERS’ INSTRUCTIONS

Irresponsible behaviour may provide a defence at common law or an evidential basis for a court to make a finding of contributory negligence.  This defence is rarely available in employees compensation cases.

Schedule 2  of OSHO Item 50 SARS  & Asian Flu A   are already industrial diseases made under Section 42  – We can anticipate – this being extended to Covid 19

INDIRECT CLAIMS

Increased stress at work

Remaining staff manning an employer’s business may be placed under considerable stress, working long hours, accepting higher workloads to keep the business running.  These will be much easier to prove as the claims will be directly related to the conditions at work or WFH without proper desks or equipment.   So employers ought to assess an individual’s ability to take on more work, and for how long and where they should work.  To avoid potential risks using dangerous equipment new staff need to be specifically trained during the adaptation period.

Hazards of Working from Home  (WFH )

If the work involves paperwork or examining documents then the employees themselves should be provided with their own desk assessments.  Providing them with ergonomic keyboards, and better equipped to prevent repetitive strain syndrome. They should be warned not to be hunched over computers for long periods.  WFH employees should bring in pictures of where they work at home and the results of their own desk assessments. This should cut down WFH related claims. This should reduce employee fatigue claims in these circumstances.

Employers engaged in the retail trade & Fast Food Outlets

As employers will be vicariously liable for their employees’ conduct which spread the virus.  The employer should introduce social distancing. Specific training should be given for dealing with special cleansing, enhanced food handling standards, and to record these measures to avoid claims. For staff who have to deal with clients, the distance rules should be adhered too, and more handwashing facilities provided by providing hand sanitizers adjacent to places of work.   Also, the provision of masks and eyewear to reduce the risk of virus transmission and records kept of such.

Supermarkets

The employers should record traffic management, mark out queuing distances, cut down the risks associated with handling money by installing more Octopus and ATM payment methods – proper training to deal with marshalling of clients when tempers are frayed owing to panic buying,  or just bad behaviour or failure to comply with social distancing..

CONCLUSION

Hong Kong has been fortunate in having relatively compliant employees at work and well-behaved clients and shoppers.  However, claims for contracting COVID-19 either at work or through use of premises are foreseeable from 29th January 2020.  Employers and occupiers of premises should heed government warnings, record the health of their employees, provide PPE, and training, and changes in the workplace. Employers should advise how best to protect themselves when working from home, to record and photograph social distancing requirements if the employer runs shops or restaurants.  Further, get the staff to insist on clients wearing masks and use hand sanitizer where possible.  These procedures should reduce claims.

Chairman of the HKBA Personal Injuries & Insurance Committee