Introduction
Tuesday (5th May 2020) marked the 100th day since the first COVID-19 case in Hong Kong. Over the last few weeks, the number of locally transmitted infections has dropped significantly. Hong Kong seems to be turning a corner in the battle against COVID-19. The majority of civil servants have now returned to their offices after working from home for several months. Many construction contractors and other organisations in Hong Kong have followed suit.
However, some employees, in particular the construction industry and other fields such as the hospitality industry, are concerned about the risk of contracting COVID-19 upon returning to the construction sites or workplaces given that they work in close proximity with colleagues; many also fear a potential third wave of infections brought about by construction industry workers and business travelers who may travel across the border from China with the potential relaxation of quarantine restrictions.
There is currently no employment specific legislation enacted with respect to COVID-19, so employers need to consider their general statutory obligations towards their employees when they attend the workplace. This raises the question: Are employers at risk of breaching their statutory duties if their employees are infected with COVID-19 at work?
In this summary article, we will briefly examine employers' statutory duties under the Occupational Safety and Health Ordinance (Cap. 509) (the "Ordinance").
Employers' Statutory Duty
Pursuant to section 6 of the Ordinance, employers have a duty to ensure, so far as it is reasonably practicable, the health and safety at work of their employees. These duties extend to the provision and maintenance of safe places of work. Employers who fail to comply with these duties may be liable on conviction to a fine of up to HK$200,000; and employers who fail to comply with such obligations intentionally, knowingly or recklessly maybe liable on conviction to a fine of up to HK$200,000 and to imprisonment for up to 6 months.
The Courts have, in past cases, suggested that employers need to consider the following questions:
- What measures are necessary and sufficient to prevent any breaches of their statutory duties; and
- Are these measures reasonably practicable?
In determining what measures are "reasonably practicable" to prevent the breach of section 6 of the Ordinance, employers have to carry out balancing exercises and weigh the quantum of risk against the sacrifice involved (i.e. money, time or trouble) in the measures necessary for averting the risk.
In other words, regard would need to be taken as to what was known at the relevant time.
For example, the risk of contracting COVID-19 would likely be higher for construction workers who come into close contact with each other when performing construction works, when compared to the head office staff of contractors who work principally from their offices and who may not, as a result of the nature of their work, require to be in such close proximity. In the former case, it would be particularly important for employers to step up their preventive measures and less weight should be given to the costs and time involved to avoid such risks. However, even in the latter case, with its lower level of risk, the employers would need to consider the risk and what measures might be taken.
Onus on Employers
In case employers are prosecuted under section 6 of the Ordinance, the Court may examine all the facts and circumstances of the case to determine what the employers have done in discharging their statutory obligations to ensure the health and safety of their employees.
The onus is on the employers to establish that compliance with any particular obligation or requirement has not been practicable (or has not been reasonably practicable), or that reasonable steps (or reasonably practicable steps) have been taken to comply with the obligation or requirement.
What can employers do?
Employers are advised to consider carefully the issues raised above and evaluate the measures currently in place in light of the types and severity of the risks their employees are typically exposed to in their work environment. If employees are infected with COVID-19 at work, employers may be at risk of allegations that they have breached their statutory duties.
Measures which construction contractors may consider adopting include, for example: provision of suitable face masks and protective gear (if necessary); limiting the number of people in container offices on construction sites; conducting health risk assessments and revise work plans to reduce close contact and enable social distancing on site; promoting health and safety to workers by clearly displaying posters on sites; clearly defining health and safety responsibilities and obligations in sub-contract documents when engaging sub-contractors; setting up contingency procedures in case of an outbreak of COVID-19 at the sites in their site safety plans.
For other industries, employers may consider adopting measures such as, providing more sets of tools to each employee so that they do not have to share them; if that is not possible, disinfecting the shared tools thoroughly on a regular basis; strengthening the training and supervision given to employees on prevention of COVID-19 as well as other health and safety matters; allowing employees to travel to work outside peak hours; encouraging employees to bring and use their own cups, bowls and utensils; installing hand sanitization machines around the office; undertaking regular cleaning daily; and enhanced deep cleaning in the weekends, etc. It would also be prudent for employers to document this process and record what measures they have decided to adopt.
In our upcoming article, we will cover whether COVID-19 may be listed as an "occupational disease" and thus compensable under the Employees' Compensation Ordinance (Cap. 282).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
