Health and safety at work in COVID-19 times (BLOG)

The COVID-19 pandemic has led to the adoption of public health emergency measures by many EU member state governments. The most drastic type of measure was the lockdown. As this confinement measure entered into force, a large proportion of the workforce was instructed to stay home and continue to work remotely. As a result, due to the COVID-19 crisis, telework has quickly become the new reality for many EU employees. Many EU companies are reconsidering their telework policies and designing possible scenarios for hybrid forms of work (combining presential work at the company premises with partial remotely working) once the COVID-19 pandemic is overcome. Next to employers, employees may also want to continue working partially from home, even if the threat of COVID-19 is over and could safely return to their workplace. Of course, telework has several potential advantages both for workers and employers, such as avoiding commuting time, flexibility to organise working time, and even an increase in productivity. But there are also important risks associated with remote work, such as isolation, lack of health and safety prevention measures, and difficulties to draw boundaries between private and working life. This blog aims to address, in the context of the current pandemic and from a multilevel perspective, the measures advised for adapting to telework (signaling the advantages of this form of work and its possible risks) and the duty of care of the employer for workers who cannot telework, more specifically the workers’ right to health and safety of workers as included in the EU pillar of social rights. The European Pillar of Social Rights guarantees, among others, the fundamental social right to safe and healthy working conditions in Europe. As it is stated in the EU Pillar, ‘[w]orkers have the right to a working environment adapted to their professional needs and which enables them to prolong their participation in the labour market.’

Telework and health and safety in COVID-19 times

Obviously, the COVID-19 pandemic has accelerated the evolution of telework, but several organisations at EU and international level had already assessed the pros and cons of this form of work in several reports. In 2017, the International Labour Organization (ILO) presented a joint report with Eurofound entitled ‘Working anytime, anywhere: the effects on the world of work’ (see: https://www.eurofound.europa.eu/publications/report/2017/ working-anytime-anywhere-the-effects-on-the-world-of-work). In a time when the use of digital technology is constantly growing and in the context of the COVID-19 pandemic, the ILO has paid attention to the opportunities and challenges of the expansion of teleworking. The ILO has also issued the ‘Practical Guide on Teleworking during the COVID-19 pandemic and beyond’ (See: https://www.ilo.org/travail/info/publications/WCMS_751232/lang–en/index.htm). The aim of this Guide is to provide practical recommendations for effective teleworking; to support policymakers in updating existing policies and to provide a flexible framework through which both private enterprises and public sector organizations can develop or update their own teleworking policies and practices.

At EU level and, as a response to the COVID-19 crisis, the European Agency on Health and safety at work (OHSA) has published the guide ‘COVID-19: Back to the workplace. Adapting workplaces and protecting workers.’  (https://osha.europa.eu/es/highlights/covid-19-back-workplace-safe-and-healthy-conditions). This document includes guidelines and advices on telework and health and safety issues. As part of the physical distancing measures taken in most Member States, many workers in the EU are compelled to work from home. How to better adjust the home (taking into account the resources available for adaptations) to a telework place is explored in this document. The following measures are proposed for employers to minimise the risks for teleworkers in this emergency situation:

– Carry out a risk assessment involving workers who telework and their representatives;

– Allow workers to take to their homes equipment that they use at work on a temporary basis;

– Provide teleworkers with guidance on setting up a workstation at home that applies good ergonomics, such as good posture and frequent movement. This includes encouraging workers to take regular breaks to stand up, move and stretch;

– Give teleworkers support in the use of IT equipment and software. Training on the use of tele and video conferencing tools for work-related tasks is essential in this context;

– Ensure that there is good communication at all levels that includes those working from home. In this context it is important to promote social interaction among colleagues, with scheduled online work-meetings, but also through organising casual online chats or ‘virtual coffee’ meetings;

– Pay attention to the risk of workers feeling isolated and under pressure, which in the absence of support can lead to mental health problems. Effective communication and support from the manager and colleagues and being able to maintain informal contact with colleagues is important;

– Take into account issues related to conciliation of working and family life, ie. that employees may have partners who are also teleworking or children who may need care and support with remote schoolwork or elderly or chronically ill people at home. In these circumstances, managers will need to be flexible in terms of working hours and productivity of their staff. In this context, it is also important to assist workers in setting healthy boundaries between work and free time by communicating clearly when they are expected to be working and available (right to disconnect);

– Take into account also how to ensure that agency workers and contractors have access to the same information as direct employees of the company;

Both the ILO and OHSA policy guides also stress the importance of involving workers and their representatives in OSH management in this COVID-19 pandemic and confinement context. The legal obligation of the employer to assess risks at work and take sufficiently preventive measures applies also to measures related to teleworking in this situation of crisis. Therefore, timely planning on advices and workplace adaptation is crucial and it is important that health and safety measures are consulted and agreed beforehand with workers’ representatives. It is important, therefore, to highlight that health and safety representatives and health and safety committees are essential to design adequate preventive measures and to monitor their implementation, also for telework.

Employers’ duty of care and practical application of the precautionary principle in the COVID-19 crisis context

In the context of the coronavirus pandemic many governments and administrative bodies of the EU Member States have passed ad hoc legislation, decrees and orders with numerous procedures in the area of Occupational Health and Safety, as an immediate response to the crisis (see for the Spanish case Ana Isabel García and Amanda Moreno, 2020). However, the references to key principles in Occupational Health and Safety, such as the precautionary principle, are missing in many of those legal texts. The current COVID-19 crisis entails a substantial shift in the conception of the traditional model of occupational health and safety protection because it is applied to the domain of scientific uncertainty. That is, it is applied in the event of uncertain or potential risk.

The Precautionary Principle acquired legal meaning when the Maastricht Treaty was promulgated in 1992 where it is incorporated into the EU legal order through article 191 of the Treaty on the Functioning of the European Union. Likewise, its content is developed in the Communication from the Commission on the precautionary principle from 2000. According to the ECJ case law, the precautionary principle is defined as a general legal principle of direct or autonomous application, as the principle of primacy or the principle of direct effect, without therefore specifying its inclusion in the secondary legislation (Regulations or Directives). In other words, in conditions of uncertainty regarding the risk or when there is no absolute certainty, it is necessary to act and adopt security measures at work as if the risks were actual.

In accordance with the Precautionary Principle, the measures adopted should be periodically reviewed in the light of the latest scientific data and technical information. A practical example of this principle, in the Spanish case, is the Occupational Health and Safety procedures against Exposure to COVID-19, which has been modified on several occasions since the Ministry of Health approved it on 5 March 2020. This means that employers (public and private) must apply the updated versions of the published technical documents and be aware of the development of the technical progress (art. 15.1(e) of the Spanish Law 31/1995, of 8 November, on Prevention of Occupational Risks). The same document mentions the risk assessment obligation, but which is the appropriate risk assessment procedure in the case of COVID-19? Reference is made to probability criteria but they are not well defined and are left to the interpretation of the experts in occupational health and safety who are applying those criteria to a specific case.

Likewise, the meaning of safe social distancing itself gives rise to different interpretations. In this regard, some States sets the standard of 2 meters distance or 1’5 meters without distinguishing between activity sectors (Occupational Health and Safety procedures against Exposure to COVID-19) while some regional governments have set out 1.5 meters distance for prevention. Obviously, these distance measures do not apply to workers who, by reason of their activity, are understood to have to provide their services at shorter distances, such as health professionals, the social services network, and the State Security Forces and Corps.

It is also quite striking that the European Union, with competence to legislate Occupational Health and Safety, has only adopted a few norms and recommendations establishing harmonized guidelines for all affected countries. Thus, following the Asian example, in some countries of the European Union (the case of the Czech Republic and Slovakia), it is required to wear masks or face protection in all places outside the home, including the workplace. The reasons are not only for self-protection but also for protecting third parties. In Austria, the obligation to use it in a general way was set out on 31 March 2020 (Erlass, Leitlinien zur Sicherung der gesundheitlichen Anforderungen an Personen beim Umgang mit Lebensmitteln; Hygieneregeln für den Einzelhandel). The criterion being applied until now about the mandatory use of masks in public places varies widely among EU Member States and it has been periodically reviewed depending of the WHO criteria. In addition, the European Centre for Disease Prevention and Control has issued several reports on the role of face masks in the control and prevention of COVID-19. In the last report, it is recommended the use of masks also in the case of uninfected people, arguing that they can help reduce the spread of infection by minimizing the excretion of respiratory droplets from infected people who do not know they are infected (see https://www.ecdc.europa.eu/en/publications-data/using-face-masks-community-reducing-covid-19-transmission). At EU level, in terms of employee protection, there have been some initiatives by the European Union, such as the Commission Implementing Regulation 2020/466, of March 2020, on temporary measures to contain risks to human, animal and plant health and animal welfare during certain serious disruptions of Member States’ control systems due to coronavirus disease (COVID-19) and the Commission Directive (EU) 2020/739 of 3 June 2020, amending Directive 2000/54/EC of the European Parliament and of the Council as regards the inclusion of SARS-CoV-2 in the list of biological agents known to infect humans and amending Commission Directive (EU) 2019/1833. This Directive applies to activities in which workers are or may be exposed to biological agents due to the nature of their professional activity.

In this pandemic, the workers going to the workplace are not risking their assets but their own lives. Although it is true that there is no rule that manages to compensate the value of human life, a non-diligent employer can become responsible for civil liability (payment of monetary compensation to repair the damage caused). Besides, in case on non-compliance with health and safety rules, employers may be facing administrative penalties (that can reach up high fines) and criminal offences. This raises the question: who will be responsible for the workers’ deaths or serious grievances related to a COVID-19 infection in case of non-compliance with the duty of care? The State? The company? The cases can vary depending on the circumstances in which work is performed but, in all probability, the diligence adopted by the company from the beginning of the pandemic on adopting the proper preventive measures will be a criterion to be taken into account by the Courts.

In any case, it is obvious from EU health and safety legislation, that public entities and employers must guarantee the utmost possible diligence to avoid particularly serious and irreparable damage at work. Hence, more coordinated action between the different national and European institutions would be desirable in this global pandemic context. In this line, at the end of 2020, the Commission has started a public consultation on the Health & Safety at Work – EU Strategic Framework (2021-2027). This initiative aims to maintain and improve the health and safety standards for EU workers – also in light of new circumstances, and will help to prepare for new crises and threats. This initiative is meant to identify key objectives and set out a strategic framework to encourage EU countries and stakeholders to work together on common priorities regarding health and safety at the workplace. (see https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12673-EU-Strategic-Framework-on-Health-and-Safety-at-Work-2021-2027).

Written by Ana Muñoz Ruiz (Universidad Carlos III de Madrid) and Nuria Ramos Martín (University of Amsterdam)