A number of people could have contracted the coronavirus at their places of work. In this article I want to highlight the legal position on workplace safety during the period of Covid-19.
Does a staff member have recourse against their employer if they contracted Covid-19 at work?
It is interesting to note that the number of Covid-19 labour lawsuits have increased globally. In many of such lawsuits the employers demonstrated gross negligence and laxity in how they handled their staff, often putting commercial profits ahead of staff welfare.
The two cases I will highlight have been cited to demonstrate ways in which employers’ negligence can expose staff to danger. While the cases are still ongoing, if the facts are proven then the employers would be liable.
In one such case, a widow Norma Zuniga filed a lawsuit against her late husband’s employer. The main contention in the lawsuit was that her husband’s Covid-19 infection and eventual death could have been avoided if his employer were more cautious. According to her suit papers, the employer required employees to continue working despite some of them being infected. Complaints by staff of the unsafe environment were ignored.
In yet another case, an employee complained to his employer that he had demonstrated Covid-19 like symptoms and was very unwell. The employer ignored the complaint and required the staff member to continue working despite his illness. He later on died and possibly infected others.
The above cases are American cases. However were the same to happen in Kenya, the employer would be liable. Under the Employment Act an employee is entitled to sick leave and is also entitled to medical attention. It would be gross negligence on an employer’s part to require an infected staff member to continue working. Not only does it endanger his wellbeing but it also exposes other staff members to infection. I believe an affected staff member in such a case, can successfully file a claim against the employer.
However an employer would only be liable where negligence on his part can be demonstrated, such as where the workplace is unsafe and high risk. For example where the same is overcrowded, not well ventilated and unsanitised. An employer cannot be liable if he took all necessary safety precautions but an infection still occurred. Employer liability is therefore tied to negligence and non-compliance with legal requirements. It is an onerous task for an employee to prove that an infection actually happened at work.
Other than exposure risk in unsafe work environments, the second type of lawsuits that may arise are lawsuits on discrimination. There has been a lot of stigma against Covid-19 patients. It is a really unfortunate position. However a lot of recovered patients have faced stigma. I would want to set the legal position clearly; it is unlawful for an employer to dismiss an employee on account of Covid-19. It is also unlawful for a recovered patient to be discriminated against.
In the case of JAO versus Home Park Caterers & Another, a HIV positive employee won a lawsuit against her employer when her employer took a HIV test on her without her consent.
To minimise legal risk exposure due to Covid-19 lawsuits, there are several steps to take. One is to adhere to Ministry of Health guidelines on workplace safety. Two is to adhere to all legal provisions on occupational safety and health. It is prudent to undertake a Covid-19 safety audit and implement recommendations from experts. Third is to take up the recommendation of working from home.