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19 Feb 2020

COVID-19: Employers’ duty to keep the workplace safe

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1. As the COVID-19 situation continues to develop in Singapore, many organisations have taken steps to ensure business continuity should any of their employees be found to have contracted the virus. 

2. Indeed, a useful guide to business continuity plans is available from Enterprise Singapore 
(https://www.enterprisesg.gov.sg/-/media/esg/files/media-centre/media-releases/2020/jan-2020/guide-on-business-continuity-planning-for-2019-ncov_2nd-edition_final_08022020.pdf).

3. This is certainly good from a business continuity standpoint but organisations need to remember that as employers they also owe a duty to provide a safe workplace for their employees. 

4. Therefore, it would be useful for organisations to design their alternative work arrangements with this duty in mind (as opposed to being focused only on the interests of the business).

5. Employers’ duty to employees to provide a safe workplace arises both under common law and legislation.

Common law

6. Tort law automatically imposes on the employer a duty of care towards his employee as soon as the employment relationship is created. 

7. The extent of such duty is such as to conform to the prevailing needs and contemporary values of society. Typically this is determined in light of the prevailing regulatory framework, current work safety attitudes and community expectations.

8. Key factors for liability under common law are foreseeability of the danger and reasonableness of steps required to prevent the injury.

Statutory duties and obligations

9. While the Workplace Safety and Health Act ("WSH") provides for penalties for employer breaches, the Workplace Injury Compensation Act (“WICA”) provides for a simple claims process for employees injured in the course of employment. 

10. The Ministry of Manpower’s FAQ specifically states that "WICA covers employees who contract diseases from biological agents, including COVID-19, arising from and in the course of work" 
(https://www.mom.gov.sg/2019-ncov/frequently-asked-questions) (see section 4(1A) of the WICA).

11. Under the WSH, "Workplace" is defined at section 5 as any premises where a person is at work.

12. Section 12(1) of WSH sets out the duties of the employer, which is to "take, as far as reasonably practicable, such measures as are necessary to ensure the safety and health of his employees at work". Section 12(2) of WSH extends this same duty to "persons (not being his employees) affected by any undertaking carried on 
by him in the workplace".

13. Section 12(3) of WSH sets out certain measures necessary to ensure the safety and health of persons at work. Section 12(3)(d) may be of particular importance in relation to the coronavirus outbreak.

14. Under section 50 of WSH, the liability for any offence under the WSH (including section 12) is:

“(a) in the case of a natural person, to a fine not exceeding $200,000 or to imprisonment for a term not exceeding 2 years or to both; and

(b) in the case of a body corporate, to a fine not exceeding $500,000.”

15. Section 47 of WSH also states that:

"Where in any proceedings for an offence under any provision in this Act, it is alleged that any person failed to comply with a duty to do something so far as is reasonably practicable, it shall be for the accused to prove that –

(a) it was not reasonably practicable to do more than what was in fact done to satisfy that duty; or 

(b) there was no better practicable means than was in fact used to satisfy that duty."

Practical approach

16. The practical question is what steps are necessary for employers to discharge their duty to employees.

17. There is limited guidance in case law (even surprisingly after the 2002/2003 SARS pandemic). As such, employers will have to draw inspiration from the government’s constantly updated advisories. 

18. Part of the Singapore government’s plan for dealing with outbreaks of infectious diseases is the ‘Disease Outbreak Response System Condition’ (DORSCON), which is a colour-coded framework that shows the current disease situation. The framework provides the nation with general guidelines on what needs to be done to prevent and reduce the impact of infections. 

19. There are 4 statuses –Green, Yellow, Orange and Red, depending on the severity and spread of the disease. For each status, DORSCON details the impact on the community, such as the measures to be taken in daily life (e.g. temperature screening, border measures) and advice to the public (e.g. to look out for travel advisories).

20. More specifically for employers, some guidance on the question of what measures are "necessary to ensure the safety and health of" the employees may be found in the Ministry of Manpower’s health advisories/guidelines (https://moh.gov.sg/covid-19/advisories-for-various-sectors ) or the Ministry of Manpower's advisories/guidelines (https://www.mom.gov.sg/2019-ncov). 

21. MOM also has a FAQ section on what employers can do to safeguard health and safety in the workplace (https://www.mom.gov.sg/2019-ncov/frequently-asked-questions).

22. As the COVID-19 situation develops, the risk to employees at the workplace will continue to fluctuate up and down. The measures required to be taken by employers to keep the workplace safe will necessarily continue to change and employers need to be ready to make changes as and when government advisories shift. 

23. It is therefore imperative that employers keep up to date on the government advisories and plan ahead to escalate or de-escalate their alternative working arrangements accordingly.

 
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