Though the Government of Jamaica has issued an order requiring those who can work from home to do so, there are many Jamaicans who, due to the nature of their work, cannot. In fact, consistent with the terms of the order, such a worker is required to go to work unless they and their employer agree otherwise. An issue of priority to the employer, and employee alike, is the health and safety of the employee in light of the highly infectious Coronavirus Disease (COVID-19). An immediate concern of all parties involved is what obligations exist in law for the protection of employees from COVID-19.
The current law, captured in the principles of employer’s liability and more generally the doctrine of negligence, does not provide an adequate answer to these pressing concerns. Generally, an employer has a legal responsibility to take reasonable steps to prevent harm to their employees. The scope of the employer’s responsibilities, though far-reaching, can be broken down into four main categories; to provide competent staff, adequate plant and equipment, a safe system of work with effective supervision and to provide a safe place of work. An employer who fails to act in accordance with the advised COVID-19 precautions may find themselves in breach of each of the last three of these duties.
The duty to provide adequate equipment may include a responsibility to provide protective gear such as masks and gloves. A safe system of work may extend to the employer being responsible for establishing social distancing practices within the workplace, establishing protocols for hand washing and sanitization as well as giving specific instructions to minimise risk of exposure and ensuring compliance with these measures. The duty to provide a safe place of work may require the employer to establish necessary sanitization practices throughout the office, to ensure that high contact areas are cleaned regularly to minimise the risk of exposure to their employees.
There is no “one size fits all” approach to the question of an employer’s responsibilities to safeguard against COVID-19. Consider the position of two different employees: first, the administrative personnel who works in an office environment and second, a cashier at a supermarket. Each worker is faced with a different level of exposure to risk of contracting COVID-19 based on the number of people they are required to interact with during their work. Each industry, place of work and type of work done carry with them nuances that will determine the exact nature of the employer’s responsibility.
To succeed in a claim under employer’s liability, the employee has to show, firstly, that they suffered some actual injury (contracting COVID-19) and secondly that it is more likely than not, that they contracted the disease because of the employer’s failure to adopt the required measures. These two features drastically limit the usefulness of employer’s liability principles to employees whose employers have not taken adequate measures to protect them from COVID-19. Firstly, the employee would only have a right to bring a claim after they have been harmed (i.e. contracted the virus), measures aimed at compelling an irresponsive employer to begin to take proactive steps do not exist under the existing regime. Secondly, even if one contracts the Coronavirus it would be exceedingly difficult to prove that this was a result of the employer’s failure to adopt necessary measures given the nature of this highly contagious and fast spreading disease. Considering this, the possibility of an employer being held to account for a breach of these duties, even if such a breach exists, and of an employee recovering compensation for that breach is very low.
The proposed Occupational Safety and Health Act (the “OSHA”), on the other hand, creates responsibilities on employers that would have been applicable to the COVID-19 situation if it were passed into the law. The OSHA requires an employer to take reasonably practicable steps to eliminate or minimise risks to the safety and health of their employees. The OSHA further outlines specific responsibilities of the employer, some of which are substantially similar to those duties an employer has under the general principles of employer’s liability such as provision of personal protective equipment, a safe plant and safe system of work. Arguably, the OSHA secures the same measure of protection for employees as discussed above in respect of employer’s liability principles.
Unlike employer’s liability principles which require the employee to prove that they have been harmed and that this harm was caused by their employer’s failure to perform one or more of these duties, the OSHA makes it an offence if the employer has failed to perform the duty, has exposed a worker to the risk of harm connected to one of its duties or acts recklessly in respect of the risk of harm to his employees. There is no need to prove actual harm resulting from this failure and the offending employer will be liable for a fine if convicted for breaches under the OSHA. The OSHA also allows the Occupational Safety and Health Officer to issue an Improvement Notice which requires the employer to remedy any breach of the provisions of the OSHA within a prescribed time and makes it an offence if the employer fails to do so. The OSHA also empowers Labour Officers to enter certain places of work to ensure compliance with the Act and to investigate claims of non-compliance. It provides an avenue for dissatisfied employees to make a complaint about possible or existing breaches. These provisions are likely to encourage inattentive employers to take care for their employee’s safety by implementing reasonable safeguards. These are an inexhaustive representation of the powers that exist under the OSHA.
Because we have not yet enacted the OSHA Jamaica’s employees are arguably less protected in the workplace against COVID-19. Their safety, effectively, rests in the alertness and proactivity of their employers. The OSHA would have afforded the employee and the Ministry of Labour, the legal means to require employers to take reasonable and practical steps to safeguard safety and health in response to Coronavirus. COVID-19 provides an excellent example of why we need the Occupational Safety and Health Act.
Matthew Royal is an Associate at Myers, Fletcher & Gordon and is a member of the firm’s Litigation Department. Matthew may be contacted via matthew.royal@mfg.com.jm or www.myersfletcher.com . This article is for general information purposes only and does not constitute legal advice.
