COVID-19 is changing the way many companies currently work. For example, by ensuring adherence to social distancing, dealing with heightened employee absence or diversifying the products or services they provide. Employers should remember that during this evolving situation their legal duty to take reasonable care for the health and safety of their workers remains.
This article outlines the types of employer liability claims that may emerge from this pandemic and what employers should consider to limit the risk of such claims.
Types of Claim
Infection
Employers have a duty to take reasonable steps to provide a safe workplace and ensure that safe systems of work are in place. With many companies still in operation and key workers still attending their usual place of work there is a risk that workers who contract COVID-19 will claim this was due to their employer's negligence.
Whether a claim is successful will depend on the facts of each case. It is also worth commenting that if and when such claims are received, they may be difficult for employees to prove, given there will be multiple sources of infection and so establishing causation may prove problematic.
To limit the risk of such claims, employers should be keeping abreast of government advice, carrying out suitable and sufficient risk assessments and ensuring appropriate measures are in the workplace such as;
- Providing suitable facilities for handwashing/maintaining personal hygiene and enhanced cleaning of the workplace
- Carrying out health surveillance and considering appropriate restrictions for high risk employees, such as those with underlying health conditions
- Providing clear instructions on maintaining social distancing in the workplace where possible
- Providing appropriate personal protective equipment
For further information regarding health and safety for workplaces that remain open please see this article.
Working at Home
For many companies, the majority of their workforce is now working from home. This presents different risks which employers need to address so as to avoid claims for physical or psychological injury whilst employees work at home.
Employers should ensure they are regularly keeping in contact with their employees, providing sufficient support and supervision. They should also provide information to enable employees to set up their workstation from home, advise employees to take regular breaks and consider any special equipment needs for individual employees. For further information in relation to this please see this article.
New/Increased risks of Injury
Another area where claims could be made against employers is from employees who are continuing to work in challenging circumstances. Many workforces are working at capacity, due to staff shortages, for example, because of employees having to self-isolate due to symptoms. This could result in increased workloads for employees who are able to work, which could lead to fatigue, or new recruits being onboarded quickly. It is important to ensure that new recruits still receive appropriate training to ensure they can carry out their role safely and competently. In addition, employers should mitigate these risks through carefully considering how to distribute the workload across the workforce.
As a result of diversification of work or absences, workers may be carrying out tasks which they don't ordinarily do, or using work equipment they are not familiar with. This could increase the risk of an accident. Employers, therefore, need to ensure they are assessing the new risks that these changes present and ensure appropriate control measures are in place.
Advice
Employers' health and safety duties to workers remain in the current climate. Due to the evolving nature of the pandemic we recommend employers;
- Ensure they are keeping abreast of current government advice and changes in the law
- Assess the business risks as a result of any changes implemented due to the pandemic
- Implement any necessary changes to the business as a result of those risks
- Regularly review their risk assessments due to the changing nature of the pandemic
- Keep a paper trail of risk assessments/tasks/systems that are reviewed to evidence the considerations taken
Contributor
Legal Director
