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COVID-19 And Employers Liability Insurance – The Risk of COVID Related Personal Injury Claims And Return To Work

Jan 21, 2021

As we adapt to the third national lockdown and start to see the delivery of COVID-19 vaccines we explore concerns starting to emerge around employers being in the sights of claims lawyers alleging negligence or breach of duty of care towards their employees

  • Employers may start to face personal injury claims relating to COVID-19 from employees
  • There is an essential need for employers to keep records around their compliance with COVID-19 guidance for the workplace
  • The need to start to prepare now for the return to work in a post vaccine world

We believe that there will be a surge of issues arising where employees feel that they are being forced to go into a workplace where they feel that this is unreasonable. Either working from home is perfectly in order, employers haven’t committed to supporting home working and/or workplace health and safety is inadequate. The Government will urge employers to help employees to work from home but there will be companies reluctant to continue with this and that brings conflict.

What is Government guidance relating to the workplace during this lockdown?

The government’s advice has not changed significantly for employers following guidance on COVID-19 secure workplaces since the first lockdown. The need for COVID controls is still there and if anything, employers may have considered revising and refreshing what they are doing as more and more employees work from home and a return to the workplace is not likely soon.

Refer to full details on COVID secure workplace guidance from the government and the Health and Safety Executive (HSE).

What types of personal injury claims relating to COVID-19 could employers find they face?

It is likely these could be split down into two categories – one set directly linked to COVID-19 and others as an indirect result of COVID-19.

Possible claims directly linked to COVID-19

The obvious claims that could be made against employers by employees would be on the basis that their employer failed to consider the risk of infection to their employees. That they did not take all practicable steps to reduce that risk such that the employee then contracted the COVID-19 virus.

If an employer has not complied with its duties to take all reasonable care for the health and safety of their employees or complied fully with government COVID secure workplace guidance, then it may find itself with a potential claim for personal injury and loss.

Possible claims indirectly linked to COVID-19

These types of claims may be more linked to the employment conditions that employees have found themselves in as a result of the COVID-19 pandemic.

Working from home

A large number of the workforce are now working from home either on a temporary or permanent basis and they may have problems with their home working station, which could result in potential physical or psychological symptom.

Employers have the same health and safety duties to home workers as to those in the workplace, and again therefore it is important that:

  • Workstation risk assessments are undertaken (either by the employer or employee);
  • Appropriate equipment / PPE is provided where possible; and
  • Employers put in place sufficient support for home working employees from a mental health perspective to prevent feelings of isolation and abandonment resulting in stress.

There is a growing concern that the insurance industry will face significant numbers of employees health issues associated with home working through the pandemic and beyond.

Changes to the nature of an employees work

Other potential claims / issues that employers should consider could result from a change in the amount or type of work that employees are undertaking following a change in the structure, furloughing, and in some cases change of roles that some employees may now be faced with.

These changes could result in employees being either over (or under) worked and in certain circumstances, could then lead to claims for potentially physical, but more likely  psychological damage arising out of the stress that they have been put under because of their work and change in working circumstances.

Again, it is important that employers are alive to these issues and put in place appropriate practices and procedures to monitor and protect their employees as far as practicable.

What can employers do to protect themselves from potential COVID-19 personal injury claims?

In a nutshell, employers should continue to comply with their duties to take all reasonable care for the health and safety of their employees.

They should ensure that they:

  • comply with all Government guidance that has been produced, specific to their business and industry;
  • undertake appropriate risk assessments considering the risks to their employees and business, and in particular consider where there may be a risk of the transmission of the COVID-19 virus; and
  • off the back of those risk assessments, take appropriate steps and actions to mitigate the risk of the transmission of the COVID-19 virus to the lowest level practicable within their business and workplace.
  • Having Health and Safety as a standing agenda item on management meetings would be a good idea.

The risk assessments that are undertaken, and then the practices and procedures that are put in place off the back of those risk assessments, should be communicated to all employees, and steps taken to ensure that they are enforced by their employees accordingly.

Those practices and procedures should be kept under constant review, in particular in light of the fact that the Government guidance is changing so rapidly, often on a week-by-week basis, and employers will need to be alive to the changes in the guidance that affect them.

Where risk assessments suggest that appropriate Personal Protective Equipment (“PPE”) should be provided, employees should be given guidance on how to use that PPE properly.

If a claim for personal injury is then brought against an employer, provided that that employer can prove that they undertook an adequate risk assessment, followed the Government guidance, put in place suitable and sufficient measures that they ensured were enforced, as well as providing appropriate PPE where necessary, that employer should then be in a good position to defend any potential claims for personal injury and loss being made against them.

The importance of causation

Despite the concerns that the insurance industry may have about potential personal injury claims, there is however one big difficulty that employees may face when it comes to potentially bringing claims against their employer if they contract the COVID-19 virus.

That employee needs to be able to prove:

  • that not only their employer breached their duty of care to them, and did not take all reasonable steps to ensure their health and safety at work in light of COVID-19; but in addition
  • it was that breach that caused them to contract the virus, as opposed to them being infected from the many other sources and contacts that they encounter in their day to day lives.

This may be an extremely difficult hurdle for employees to overcome and prove when pursuing claims against their employers, and the test in all likelihood will be that their employer, by way of their breach and negligence, materially contributed to the risk such that it was likely that the employee contracted the virus directly as a result of their employers’ actions (or lack of).

With causation likely to be difficult to prove for well managed businesses we have to consider that the world is not perfect and some employers will be found wanting in their approach to the pandemic. Claimant lawyers exist for good reason and in all likelihood their approach will be “80-20” and a strategy of being able to move from a fixed fee environment (where earnings are limited) to an hourly rate where pursuing claims will be far more profitable.

Will I be covered under my Employers Liability insurance policy should any claims for COVID-19 be brought against me?

Most employers should have in place Employers Liability insurance which should cover any potential claims for personal injury and loss if a claim against them is being made by their employee for breach of their duty of care leading to contraction of the COVID-19 virus. It is a statutory requirement.

It is important that as an employer you check that you have an insurance policy in place, that the policy has not lapsed, and that there are no conditions or clauses within that policy that might preclude you from being indemnified accordingly.

Should you receive any notification or intention that a claim for personal injury and loss as a result of an employee contracting COVID-19 may be brought, you should notify your broker or insurer immediately.

Preparing for the return to work once vaccines rollout

Large sectors of the workforce have been working from home during the pandemic. So, with a successful vaccine rollout, employers will need to start to consider how they manage the return to work.

Even with the vaccine, some form of COVID related controls are expected to be required for a sustained period. The vaccine is not compulsory and will not offer full immunity, so continued management is likely to be required. Employers will need to keep this in mind when the time comes that employees can return to the working environment.

  • Vaccination is likely to be a factor in return-to-work risk assessments when the time comes – vaccination is not compulsory and employees may be reluctant to disclose whether they have had the vaccine or not – straying into medical records and personal data. Add to this the possibility that people may avoid the truth and the real world comes to the fore. Vaccination alone cannot be considered a control method given the factors mentioned above. Treat all employees as though they have not had the vaccine.
  • Sustained control measures and risk management will be required relating to COVID-19.
  • This means continued compliance with government COVID secure workplace guidance and continued updating of risk assessments and the taking of the appropriate actions identified via risk assessment even once the vaccine sees a wider role out
  • discrimination be wary of unintentionally discriminating across your employees. The Government has recently updated its guidance around the Black, Asian and Minority Ethnic (BAME) community for example

Given the significant presence of COVID-19 over the past 10 months it is likely that we will see some employers face personal injury claims linked to the virus.   What is essential is that employees keep accurate record keeping of compliance with COVID secure workplace guidance and strong evidencing of how they have upheld their duty of care to employees.

Whilst news of the vaccine is positive, it is not a silver bullet for employers. The vaccine is not compulsory and doesn’t offer total immunity so continued COVID management will be required for some time. With this in mind, it is necessary to start to plan for the return to work in a post vaccine world, but a return to work which delivers continued high levels of consideration for health and safety and risk management.

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