Many employers should be concerned about the prospect of facing compensation claims from staff who contract coronavirus at work. Where someone contracts Covid-19 in the course of their employment, they may be able to make a civil claim against their employer.
Covid-19 is currently a notifiable disease. This means that when a medical practitioner identifies a person as having the disease through testing, it must notify the Chief Medical Officer.
An occupational disease is described by the World Health Organisation as “a disease contracted primarily as a result of an exposure to risk factors arising from work activity”. Examples could be acquiring an injury or illness through exposure to a dangerous chemical or damage to your hearing caused by excessive noise in the workplace.
While cases of Covid-19 must be notified to the Chief Medical Officer, it is not classed as an occupational disease. Changes to legislation would be required for Covid-19 to be classed as an occupational illness. The HSA has confirmed that it is currently initiated a legislative review on the matter and will submit any proposals or recommendations it makes to the Minister to consider.
The prescribed occupations, during the course of which people who contract the disease may have the right to compensation, might include health, care and related occupations, or could be widened to encompass any occupation involving exposure to Covid-19.
The broader eligible workforce might include supermarket staff, transport workers and others who regularly come into contact with large numbers of people, or those who come into intimate contact with a smaller number of people, such as garda during an arrest or criminal defence solicitors giving advice in a cell.
Employers’ duties to protect their workers
Employers owe their employees duties of care in the tort of negligence. A breach of duty which causes injury and/or financial loss can lead to an award of compensation.
If the claim is successful, the court will also order the defendant employer pays the claimant’s legal costs. An employer would expect their Employer’s Liability insurer to conduct the defence and pay any damages and costs awarded by the court or negotiated by the insurer on its behalf.
In addition to their common law duties to provide a safe place and system of work, employers owe employee statutory duties under the Safety, Health and Welfare at Work Act 2005 to take reasonably practicable steps to safeguard safety, health and welfare. Failure to do so is an offence.
An employer will owe a duty in respect of a specific risk, if that risk is reasonably foreseeable to an employer in that situation. Some employers will (or ought to) foresee risks that other employers might reasonably not.
“Knowledge” of the specific risks of Covid-19 arose from the experience of the Chinese city of Wuhan, which was widely reported in the international press from the end of 2019. It may be argued that every employer should have been thinking about the risks posed by Covid-19 from that point, and should have been preparing and revising risk assessments as the virus spread internationally.
What is considered a “reasonable” risk assessment will vary according to the facts. A large supermarket, for example, will have very different obligation to its employees than the proprietor of a corner shop.
Breach of duty
Employers should take a hierarchical approach to risk management and reduction – seeking first to avoid the risk entirely; then reduce the chance of the risk arising; then minimise the consequence of the risk; then cease the risky activity altogether.
Depending on the workplace, provision of appropriate personal protective equipment (PPE), hygiene facilities and social distancing are strategies than can be deployed by many employers. If done in a timely way, this may discharge their obligations to their employees.
Requiring employees to work from home (where the nature of the work allows) will clearly provide a strong defence to a claim, and will minimise the risk of injury and of a claim arising in the first place.
Employers with special knowledge of pandemics (such as university and pharmaceutical research labs) might reasonably be expected to have prepared fully for a respiratory disease pandemic, following the SARS and MERS outbreaks.
Duties owed to employees might also be owed to self-employed contractors, especially where they work alongside each other or as part of an integrated process or service.
If the employers’ breach of duty causes injury, a claim might succeed. But the claimant will have to establish the diagnosis and then prove that workplace exposure, rather than exposure elsewhere, caused the disease.
There is likely to be some doubt that a mild viral infection constitutes an actionable injury.
Where a disease requires hospitalisation, however, there should be no difficulty in persuading a court that it is, in principle, compensatable.
Where an employee dies from, or with Covid-19, there may be an inquest. The law and practice in this area is not entirely clear and will likely vary to some degree from one region to another.
A post mortem will be helpful or even decisive, in yielding a diagnosis. But, the resources of coroners, local authorities and others who support them, will be stretched by the Covid-19 pandemic and it may be too much to expect a post mortem in every case, especially if the death occurs in hospital and there is already a documented assumption of the presence of Covid-19 in the hospital records.
If the diagnosis is reasonably secure, a claimant will have to prove exposure at work caused the injury.
As Covid-19 is a new disease, it remains to be seen how the courts settle the question of compensation, if civil claims are brought against employers.
The PIAB book of quantum suggest awards for a minor collapsed lung is from €14,600 to €17,900 where that has been an uncomplicated recovery; for a more complex injury with treatment and/or drainage, but where a full or near full recovery has taken place the suggested award is from €19,900 to €42,100; for severe and permanent conditions the suggested award is from €52,600 to €82,700.
Admission to ICU with Covid-19 might warrant an award in the severe and permanent conditions range, i.e., €52,600 to €82,700, while admission to hospital but not ICU might warrant an award in the moderate bracket i.e. approximately €19,900 to €42,100.
Loss of earnings and related expenses would be recoverable in addition.
Where an employee dies, the value of the claim depends on the deceased’s likely future earnings capacity, among other variables.
While much remains unclear, it is important to remember that the novelty of the virus does not excuse employers from their obligations to have reasonable regard for the safety of their employees.