Insights

The ILO Centenary Declaration ^[1], adopted in June 2019, resolved that ‘safe and healthy working conditions are fundamental to decent work’. This declaration merits an update as, today, more than ever, ‘it is very clear that protecting and promoting occupational safety and health is of the utmost importance for workers, companies, social protection systems, and the whole society.’^[2] It is now a clear fact that a comprehensive risk assessment is an impact-proven measure that can save lives or prevent recurrences as it allows workplaces to develop a quick, coordinated, and effective response during a health crisis.

Businesses and companies are expected^[3] to offer prevention and protection measures, including the assurance that workplaces, machinery, equipment, and processes are safe, and without risk to one’s health,^[4] as well as provide plans for emergency preparedness.^[5] The continuous monitoring of hazards and appropriate assessment of risk is the starting point for managing occupational health and safety (OHS). When re-assessing or conducting a risk assessment, employers are to categorize COVID-19’s exposure risk level at each worksite and take appropriate steps to protect employees based on their exposure to that risk level. It is therefore crucial for businesses to now carry out a thorough review of their workplace, from start to finish, identifying risk of transmission or infection, and implementing appropriate controls to eliminate that risk or, if this is not possible, to at least bring it to an ‘acceptable’ level.

Which are the ‘appropriate’ steps which should be taken? Unfortunately, the various guidance notes published by governmental authorities are not a fail-safe blueprint to satisfy all OHS obligations. Generally, the identification of risks should include the following key elements: policy organization, planning and implementation, evaluation and action for improvement.^[6] In simpler words, when it comes to OHS, the following mantra should be chanted; risk assess, document, communicate, and train adequately. Effective communication gives workers a sense of control^[7] as it identifies concerns and promotes a ‘safe working environment’.

Entities, no matter how big or small, must bear in mind that according to Maltese law, when determining liability for failure to provide a safe working environment, courts will not only look at the company director or person holding a managerial role, but will also question the actions of any other person who purports to act in any such capacity. It is then up to such persons to adequately and sufficiently prove that all reasonably practicable measures, a term often used in matters of OHS, had been taken to host a safe working environment for its workers.^[8] This interpretation also means that employers shall not be exempt from liability should they opt to engage a professional OHS practitioner to draw up an effective risk assessment. Clearly, persons in control are to be actively involved in the report having a full understanding of the content therein, regardless if the assessment is loaded with technical information or complexities. The legislator and the courts want to convey a message; persons within an organisation must be held accountable for negligent decisions which affect the safety of employees, and therefore safety cannot be an afterthought. The tone from the top should be ‘prepare and prevent’, not ‘repair and repent’, as it is normally the case that a serious OHS breach at any workplace is just the tip of the iceberg and a sign of a much larger problem below the surface.

To add to the above, Maltese law defines a worker as a ‘person employed by an employer to perform work, or who provides a service to another person under a contract of service or for service, and includes a trainee, an apprentice, and a self-employed persons’ and a workplace is defined as ‘any premises, thing or location, whether public or private, where work is carried out or to which the worker has access to in the course of his employment.^[9] ’ When considering this infectious disease and identifying the hazards faced in a workplace, including air conditioning systems, lifts, etc., and not just work stations, and on deciding who might be at risk of contagion; employers must take into consideration the persons, including third parties, accessing the premises and decide on innovative precautions to limit those risks. For example, in light of COVID-19, employers may wish to provide temporary face masks to clients attending a meeting or facilitating sanitization of frequented common areas.

A risk assessment is the first document which a court will review when considering mitigating liability, hence, it is high time that each company’s risk assessment is updated to reflect changes in their OHS policy in view of COVID-19. A risk assessment should also consider foreseeable incidents caused by employees as they do tend to get careless about risks, especially with COVID-19 being a ‘new’ risk. It should include the prevention of such risks by including measures such as staggering break times, for employees to remain socially distanced, and changing desk space configuration so that employees work back-to-back.

The Maltese, as well as foreign courts convey the message that employers are to provide a high standard of care towards their employees, which, understandably, is not an easy task. It would be made simpler if the corporate culture includes two simple goals; safety and security. This should aid employers to use their minds and implement reasonable decisions whilst retaining flexibility in adjusting to this ‘new hidden risk’. It is very likely that employees who refuse to attend work or take appropriate steps to protect themselves or other persons in circumstances of contagion which they reasonably believe to be serious and imminent, are protected from dismissal. In such cases, the Industrial Tribunal in Malta will, in all probability, assess and conclude that the action taken by the employee is reasonable.

Many have questioned the pragmatic meaning of the term ‘practical reasonableness’, a term which is often cited in court judgments,^[10] and one wonders how this term would be applied in the context of COVID-19. If one had to take into consideration the elements often cited in various Maltese judgments and adapt these to the transmission of COVID-19, this would mean that employers are to consider; (a) the more likely or probable the risk of transmission is, the greater the duty by the employer to guard against such transmission; (b) the possibility of transmission and the measures taken to prevent such transmission; and (c) different kinds of work involve different risks of transmission, for example, delivery personnel are at higher risk of contagion than a person stationed in an office space. Lord Justice Asquith,^[11] when asked to explain the term ‘reasonably practicable’, described a scale weighing a risk against the steps in terms of money, time, or trouble needed to counter it which factors must far outweigh and not balance the risk. This balancing act requires lots of experience and knowledge and professional advice ought to be sought.

The International Organisation of Employers and International Trade Union Confederation have issued a joint statement^[12] expressing their commitment to support policy makers in their efforts to ensure business continuity and to alleviate financial devastation. This alone is not enough. On a day-to-day basis, no matter the industry, it is now crucial if not fundamental for organizations to join forces to continue to combat the impact of the COVID-19 health crisis (or any other occupational health hazard) by eliminating paper-promises and actively ensuring that OHS is a key investment to protect worker’s health and safety.

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^[1] International Labour Organization, ‘ILO Centenary Declaration for the Future of Work, 2019’ <https://www.ilo.org/global/about-the-ilo/mission-and-objectives/centenary-declaration/lang–en/index.htm>.

^[2]‘Coronavirus: EU Guidance for a safe return to the workplace’ (European Commission, 24 April 2020)  <https://ec.europa.eu/commission/presscorner/detail/en/ip_20_729>.

^[3] Occupational Safety and Health Recommendation, 1981 (No. 164);
^{The Work Place (Minimum Health and Safety Requirements) Regulations – Subsidiary Legislation 424.15 (Article 5 – General Duties)- the Workplace Minimum Health and Safety Regulations. According to the laws of Malta, these regulations are to be considered as the minimum occupational health and safety requirements applicable mutatis mutandis to every workplace and to every work activity, and shall apply whenever required by the features of the workplace, the work activity being carried out, the circumstances prevailing, and the degree or nature of the hazard – (Article 2(1) – Application of the Workplace Minimum Health and Safety Regulations.}

^[4]ILO Convention 155 Occupational Safety and Health Convention, 1981 (No. 155) [Article 16].

^[5]Workplace Minimum Health and Safety Regulations [Article 5]; Work Place (First Aid) Regulations – Subsidiary Legislation 424.13.

^[6]International Labour Office: Geneva, Guidelines on Occupational Safety and Health Management Systems ILO-OSH 2001, (2nd edn International Labour Organization 2001).
^{European Commission Directorate-General V Employment, Industrial Relations and Social Affairs, Guidance on risk assessment at work, (ECSC-EC-EAEC, Brussels, Luxembourg, 1996). Risk Assessment Tool available on the Malta Employers Association and available for download on the following site maltaemployers.com/en/ohs-regulations; European Agency for Safety and Health at Work, EU Guidance ‘COVID-19: back to the workplace: adapting workplaces and protecting workers’ (27 July 2020), <https://osha.europa.eu/en/publications/covid-19-back-workplace-adapting-workplaces-and-protecting-workers/view>.}

^[7]International Labour Organization, ‘In the face of a pandemic: Ensuring Safety and Health at Work, (2020), <https://www.ilo.org/wcmsp5/groups/public/—ed_protect/—protrav/—safework/documents/publication/wcms_742463.pdf>.

^[8]699/06, Simon Despott vs Corinthia Palace Hotel Company Limited (C-257) u kif ukoll Patrick Busuttil f’isem u fl-interess ta’ Flight Cathering Company Limited (C24720) u Corinthia Group of Companies għal kull interess li jista jkollhom COA (Superior), 20 July 2020. [11]- ‘Illi hija regola ewlenija f’dan il-qasam, li l-imgħallem irid jiżgura li jipprovdi lill-ħaddiema tiegħu b’ambjent li jżomm ’il bogħod kull periklu u dan billi jiżgura li jitħaddem sistema xieraq ta’ ħarsien minn kull periklu fejn ikun sejjer isir ix-xogħol minnu mitlub. Fid-dritt, dan id-dmir iġorr miegħu grad għoli ta’ responsabbilita` fuq l-imgħallem, u jaqa’ fuqu l-piż li jipprova li n-nuqqas li l-impjegat jilmenta minnu ikun seħħ minkejja li jkun ħares dak kollu li l-liġi tistenna minnu f’dan ir-rigward. Huwa wkoll dmir li jitfa’ fuq min iħaddem il-piż li jieħu miżuri preskritti xierqa u jġib miegħu wkoll id-dmir tal-għoti ta’ tagħrif meħtieġ, l-għoti ta’ tagħlim u taħriġ u kif ukoll superviżjoni biex titħares is-saħħa u s-sigurta` tal-ħaddiem.’

^[9]Occupational Health and Safety Authority Act, Chapter 424 of the Laws of Malta [Article 2 – Interpretation].

^[10]ibid (n7).
^[11]Edwards vs National Coal Board [1949] 1 All ER 743 CA – ‘Reasonably practicable, as traditionally interpreted, is a narrower term than “physically impossible” and implies that a computation must be made in which the quantum of risk is placed in one scale and the sacrifice, whether in money, time or trouble involved in the measures necessary to avert the risk is placed in the other; and that, if it be shown that there is a gross disproportion between them, the risk being insignificant in relation to the sacrifice, the person upon whom the duty is laid discharges the burden of proving that compliance was not reasonably practicable. This computation ails to be made a point of time anterior to the happening of the incident complained of.’ This statement has been approved in several other cases including Marchall v Gotham Co. Ltd [1954] 1 All ER 937 (House of Lords).

^[12]IOE, ‘Joint Statement on COVID-19 by International Organisation of Employers and International Trade Union Confederation, <https://www.ilo.org/wcmsp5/groups/public/—ed_dialogue/—actrav/documents/genericdocument/wcms_739522.pdf>.

First published in Id-Dritt Vol. XXXI.