Insights

Just as in any normal circumstance, the identification and assessment of risk is the starting point for managing occupational health and safety (OHS). When reassessing or conducting a risk assessment, employers are to categorise COVID-19’s exposure risk level at each worksite and take appropriate steps to protect employees based on their exposure to the risk level. This is why, as always, it is crucial for businesses to carry out a thorough review of their workplace, from start to finish, identifying the risk of transmission of infection and implementing appropriate controls to eliminate that risk or, if this is not possible, to at least bring it to an ‘acceptable’ level. The support for employee’s physical and mental well-being should be at the very heart of any decision taken from an OHS perspective.

One is to always keep in mind that, in the event of negligence or failure to provide a safe working environment ‘a person being a director, manager or other similar officer of the undertaking, or a person who purports to act in any such capacity’ must prove that all reasonably practicable measures (a term often used in OHS) had been taken to maintain a safe working environment. This translates to the fact that although any person may draw up a risk assessment report, persons in management or control must be actively involved and must have a full understanding of the content therein. One may also engage an OHS consultant to draw up a risk assessment though this will not suffice in the eyes of Maltese law, because persons in control of the business – no matter how big or small – must be aware of the assessment, its updates, the thought process and information found therein. The legislator wanted to ensure that these individuals bring personal accountability into play to ensure safety is not an afterthought.

Linked to the above is the fact that Maltese law defines a worker as a ‘person employed by an employer to perform work or to provide a service to another person under a contract of service or for a service’ (this includes apprentices, trainees, secondees, detailed workers and dependent self-employed persons) and a workplace is defined as any premises where work is carried out or to which the worker has access to in the course of his employment. This means that an employer does not only have an obligation to retain a safe system of work at the premises but must also manage risk when the workplace is accessed by third parties. Keep this in mind when drawing up a risk assessment in order to, for example, ensure that disposable face masks are available at the points of entry for third parties (delivery persons, customers, postmen, etc) to use prior to entering the premises. Think ahead and make sure that documents/goods are delivered in one specific area to make cleaning and sanitising of that particular area easier. Wake your building up if it has been closed for a particular amount of time by completing a thorough sanitisation of the workplace and each workstation (workplace includes air conditioning systems, lifts, etc, and not just workstations).

Revising or drafting a risk assessment will avoid costly panic-buys which is a recent trend being seen in many businesses. When revising your risk assessment, attention must be given to the updated information from public authorities on the prevalence of COVID-19 but the advice is to do more than what is actually required by the authorities due to the ‘high standard of care’ employers are duty bound to provide. This is understandably not an easy task. The dominant thought should always be that employers are to act reasonably and be flexible in adjusting to this ‘new hidden risk’. Employees may have reasonable reservations for returning to work after working from home. By being flexible employers are tasked with possibly making permanent working from home an option as Twitter has decided to do with its 5000 plus employees. It may be time to decentralise the workforce or allow employees to work from home on a number of days. These past few months have shown that this has made most employees happier and more productive.

One is to be reminded that on many occasions the Maltese courts have invariably concluded that an employer cannot raise the defence that he/she sought expert advice and followed recognised current practice. Employers are obliged to not only follow the current practice or public health instructions but do all that is reasonably practicable to mitigate risk, provide effective protective equipment (where and when necessary) and consult with employees in steps which are being taken to make sure that employers are managing the risk of the transmission of COVID-19.

Many have questioned the practical meaning of the term ‘high standard of care’ which is often cited in court judgments and one wonders how this term would be applied in the context of COVID-19. If one had to take into consideration the ingredients often cited for ‘reasonably practicable’ taken from various Maltese judgments and adapting these to the transmission of COVID-19, this would mean that (a) the more likely or probable the transmission is, the greater the duty by the employer to guard against it (b) they must have the foresight to the possibility of transmission and protect against it (hence the importance of having or updating your risk assessment report) and (c) all kinds of work involve different risks of transmission. This is to be adequately assessed (for example a template risk assessment written in a general context just to tick the box of having a risk assessment would not be enough to evidence that all that was done to safeguard the employee against transmission of the infectious disease).

Lord Justice Asquith 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. Much rests on how big the risk is, and this risk must be weighed against other factors such as money, time, or trouble, and these must far outweigh (not balance) the risk. It can be a fine line deciding what is reasonably practicable and this requires lots of experience and knowledge – when in doubt, consult.

COVID-19 is a hazard which is to be classified as an infectious disease. Employers are to think outside the box and practically, such as training employees (even by sending an on-line video) on how to effectively use the safety equipment, or thinking about those persons who are exposed to risk whilst getting into and leaving work (if one uses public transport, that employee is to be made aware of the additional measures which are to be taken whilst using public transport), organising the work area by retaining a 2m distance and if this is not possible assign one person per work area. Employers must think about mitigating the risk of transmission by reconsidering the option of having shared company cars or shared transport. Discourage employees from sharing workstations or phones and if employees do not normally have desk assigned to them, it may be time to reconsider this and temporarily assign employees to specific workstations thus allowing for proper workplace hygiene. Employers are to pay special attention to workers who are at high risk and be prepared to protect the most vulnerable.

Lest we not forget that, as frequently mentioned by the Courts, employees also tend to get careless about risks involved in their daily work especially with COVID-19 being a ‘new’ risk. To reduce this possibility, place signs in the workplace encouraging people to frequently wash their hands, provide hand sanitisers where these are clearly visible and provide non-touch bins. Stagger break times so employees are not sitting in groups together.

Lastly, employers are required to consult with their employees about any arrangements put in place to control the risks associated with the virus. Effective communication prior to the employees’ return to the office will reduce the fear of contracting the virus at their workplace.

Assessing risk is just a part of the overall process used to control risks in your workplace. However, this part is a critical one. From an OHS perspective employers should always chant the following mantra: risk assess, document, communicate, and train adequately for effective controls. Employers have a duty to demonstrate that they not only understand what safety is all about – but that it is a top priority in the organisation – now more than ever.