In every employment contract, there is a tacit provision that the workplace will be safe, humane and conducive for the fulfilment of the worker’s or employee’s obligations. This term has been recognised severally by the courts and sometimes codified by statute. However, in the age of the new normal where concepts are shifting and being redefined, previously concrete notions like “workplace”, and “safety” are changing.
At the advent of Covid-19 pandemic last year, countries around the world introduced measures to curb the spread of the deadly pandemic. The Federal Government of Nigeria through its Covid-19 Guide for Businesses released in August 2020, made several recommendations for the government offices/other corporate offices, in particular,
- Ensure the provision of sanitisers and appropriate PPEs to all workers
- Mandatory use of non-medical masks
- Temperature checks on arrival
- Ensure adequate space between employees (minimum 2 metres)
- Determine what level of staff needs to come to work
- Discourage the sharing of work equipment, tools, computers, phones and desks
- Develop an infectious diseases and preparedness action plan to reduce the risk of exposure in the workplace and communicate to all staff members.
With the ease of the total lockdown in September 2020, businesses including law firms slowly and steadily resumed work at their premises, with some at full capacity. At the time of writing, Nigeria is experiencing a second wave of the pandemic with number of those infected daily exceeding 900 and rising. Along with it, concerns about the safety of work-goers vis-à-vis the spread of the virus and the question of the liability of an employer where an employee is infected in the course of work.
Although, it is generally acknowledged that each person has a personal responsibility for their health, at what point does it intersect with the legal obligation of the employer to provide a safe workplace for the employee? For instance, where Company ABC mandates all workers to come to work and neglects to follow the NCDC guideline to provide seating arrangements with a minimum of 2 meters between staff and an employee contracts Covid-19, would the employer be liable?
The Safety Issue
Owing to the sudden nature of the pandemic, there are no laws that specifically address the ratios of responsibility for an infected Covid-19 employee, however, there are two provisions that could make a case for the employer’s liability.
Section12 of the Labour Act defines personal injuries as “any disease and any impairment of a person’s physical or mental condition arising out of his employment”. This raises the question of whether Covid-19 falls within the ambit of personal injuries. Based on the evidence and reports by the WHO, most people who contract the virus experience mild to moderate illness, recovering in 2-6 weeks; up to of 15% progress to severe disease; 5% become critically ill, and at least 1% die. Early symptoms include fever, dry cough, loss of taste or smell and serious symptoms are difficulty breathing, chest pain and loss of speech or movement. By virtue of this information, Covid-19 does cause an impairment of a person’s physical condition, thus, if an employee contracts Covid-19 while in the course of discharging his responsibilities to the employer, the employer could be liable.
Section 12 further states that “it shall not be a defence to an employer who is sued in respect of personal injuries caused by the negligence of a person employed by him, that person was, at the time the injuries were caused, in common employment with the person injured.”
Following the example cited above, Employee A and Employee B at Company ABC sit at a work desk directly across each other. Employee A wears his mask religiously but Employee B, who is infected but asymptomatic, wears his mask under his chin with nose and mouth fully exposed, confidently exhaling and chatting with other co-workers.
According to WHO, Covid-19 spreads between people through direct, indirect (through contaminated objects or surfaces), or close contact with infected people via mouth and nose secretions such as saliva, respiratory secretions or secretion droplets. These are released from the mouth or nose when an infected person coughs, sneezes, speaks, sings, etc. and people who are in close contact (within 1 metre) with an infected person can catch COVID-19 when those infectious droplets get into their mouth, nose or eyes.
The NCDC guidelines, in line with global health recommendations, aim to encourage the implementation of the most effective combination known to limit the spread of the virus: regular hand washing –to eliminate any droplets or secretions; mask wearing- to limit the spread of droplets to one metre, and social distancing of at least 2 metres – to stay out of reach of any droplets or secretions.
Again, using the example, Employee B sneezed mid-conversation. A few droplets landed on Employee A’s face, and in the blink of an eye, he is infected.
By section 12, Company ABC is forestalled from claiming Employee B’s negligence as a defense in a personal injury case brought by Employee A. Furthermore, given the NCDC guidelines and general health regulations, Company ABC could be construed to have willfully put them in a position to be infected.
Given the rise of remote working, flexi-hours and all variants of the gig economy, the definition of workplace is shape-shifting, and it is expected that future labour laws will be cognizant of this. Currently, however, the liability of the employer to an employee who contracts Covid-19, extends beyond a designated brick and mortar location to any injury that arises “in the course of employment”.
According to Section 7(1) of the Employees Compensation Act “any employee, whether or not in a workplace, who suffers any disabling injury arising out of or in the course of employment shall be entitled to payment of compensation …(2) An employee is entitled to payment of compensation with respect to any accident sustained while on the way between the place of work and – (a) the employee’s principal or secondary residence; (b) the place where the employee usually takes meals; or (c) the place where he usually receives remuneration, provided that the employer has prior notification of such place.
By these provisions, an employer could be liable to an employee who was infected with the virus, as long as it can be shown that the employee was infected in the course of employment, even if the employee was not at a location over which the employer has control. Of course, there are other considerations required to create a full picture, like the fact that guidelines cannot be enforced in the same way that statutes can, or at what point an employer is liable to an employee working from home. The outcomes are bound to vary and will make interesting additions to case law, if they do arise.