Health & Safety Obligations of Employers – How has COVID-19 affected such?

Author: Ann Bugeja

The Employer’s Legal Obligations

The Occupational Health and Safety Authority Act (Chapter 424 of the Laws of Malta) establishes that it is the duty of an employer to ensure the health and safety of all persons who may be affected by the work being carried out for such employer at all times. All measures taken by employers to ensure health and safety, shall be taken on the basis of general principles of prevention which include:

• the avoidance of risk,
• the identification and evaluation of hazards associated with work,
• the control at source of all risks which cannot be avoided and the taking of all necessary measures as reasonably practicable to reduce risk,
• giving priority to collective protective measures over individual protective measures,
• adapting the work to the worker insofar as the design of the workplace and choice of work equipment, and
• by adapting to technical progress in the interest of occupational health and safety.

How has COVID changed the Employer’s Legal Obligations?

The Maltese Authorities have issued several guidance documents explaining the suggested mitigation measures for different types of workplaces which should be put into place in order to reduce the spread of COVID-19. Such guidance documents are not legal obligations but should be used as recommendations for employers to be able to comply with the obligation under law to ensure the health and safety of all persons as discussed above.

It is recommended that employers conduct a risk assessment in order to identify how persons might be exposed to risks of contracting the virus depending on the various categories of employees, the nature of their work and the premises at which such work may be carried out. Employers should ensure that they document such efforts to assess and mitigate the risks to employees. It is also imperative that employers communicate with all employees and inform them of all protocols and policies in place. An employer should also ensure that no other obligations arising from different laws are breached including those arising from data protection laws.

Can an Employer be held liable for employees contracting the virus at the workplace?

Given that an employer has legal obligations to ensure the health and safety of all persons who may be affected by the work being carried out, it is important for an employer to document all actions taken in order to mitigate the risk of anyone contracting the virus at the workplace. Thus, any risk assessments made should be documented and the employer needs to be able to prove that sufficient mitigation measures were put into place as based on the risk assessment in order to safeguard the employees’ health.

The liability of the employer may then be analysed on a case by case basis by the relevant Courts, depending on the risk factors involved.

What happens if Employees refuse to come back to work due to fear of catching the virus?

At present, Legal Notice 243 of 2020 has repealed the previous Legal Notice which had declared that a public health emergency existed in Malta as of March 7th and thus, this may not be used as a valid excuse by employees in order to refuse to come back to work at the office.

However, employers should be sensitive to the fact that parents and/or persons who were considered as vulnerable persons prior to the repealing of the relative Legal Notice, may still require some flexibility in regards to working times and their place of work especially in situations where the nature of the employees’ jobs allows them to telework.

Employers also need to ensure that they have communicated with the employees and provided the employees with evidence of the relevant risk assessment and mitigation measures taken in order to ensure that the employees are not put at risk of catching the virus and in order to put the employees’ mind at ease. Should an employee still refuse to return to work, and such employee is not able to telework, the employer then needs to assess the situation carefully and on a case by case basis in order to confirm whether there is good and sufficient cause for termination of employment and/or a breach of the employment contract.

Should a case for unfair dismissal be instituted by the employee, the Industrial Tribunal will assess the facts of the case in detail and will make a decision on a case by case basis. The employer should follow the established disciplinary procedure and ensure that there is good and sufficient cause prior to terminating an employee for not returning to work due to fear of getting sick.

Should you have any queries in relation to the above, kindly contact us on employment@gvzh.mt.