Nigeria on Wednesday 25:03:2020 confirmed that 46 persons have tested positive to Coronavirus (COVID 19) with a record of one death (at the time of writing this article). How does COVID 19 impact on employment relations in Nigeria, that is, does this create added obligations for employer and employees or does it modify existing relations on the course of employment.
– It is noteworthy that Lagos and F. C. T (Abuja) are unofficial ‘high risk areas” within Nigeria, given number of COVID 19 patients within those Cities.
Increase in the spread of COVID 19 both in Nigeria and globally, present reasonable challenges for employers and employees, and Nigeria employment sector is not yet immunized against its global effect. We will evaluate how employees and employers can respectively exercise their rights and duties to health and safety at work, care and provision of work as well as extent of medical information employer may request from any employees.
HEALTH AND SAFETY AT WORK
COVID 19 can safely be classified under health and safety issues in the workplace – the WHO has declared it a pandemic. A combined reading of provisions National Policy on Occupational Safety and Health’s (the “OSH Policy”) definitions of “health in relation to work” and “occupational health” support our assertion that it is a HSE issue under Nigerian legislations, which include Labour Act, Employees Compensation Act, and Factories Act
OSH policy defines “health in relation to work’ as ‘not merely the absence of disease or infirmity but includes the physical and mental elements affecting health which are directly related to safety and hygiene at work” and “occupational health’ as ‘the promotion of the physical, mental and social wellbeing of workers and the adaptation of work to man and man to work.”
Nigerian employers, traditionally, have duty to ensure safe and healthy workplaces. The spread of COVID 19 increases the extent of this obligation with alarming urgency. Small and medium scale enterprises are not exempted, rather given their generally crowded workspaces, poor HSE policies, and nearly unsanitary conditions, it is urgent for SMSEs to inculcate better health and safety measures to combat the spread of COVID 19 in line with national and globally responses. – Lagos State Government’s policy to lock down businesses offering non-essential services such as foods and daily needs, appears to be a reasonably cushion against the imminent spread of COVID 19.
Employees with known health conditions (such as HIV and other immune-debilitating illnesses), Pregnant and nursing employees should be considered more vulnerable persons and may wherever situations may allow it, be required to work remotely rather than be exposed to normal working conditions – this is because these classes of employees may have lower immunity than the average employees.
Osita Enwe & Michael Dugeri on Legal Treatment of Occupational Safety and Health in Nigeria argues that OSH Policy clearly exemplifies broad duties of employers to employees to include to:
A. ensure, so far as is reasonably practicable, the safety, health and welfare of all employees;
B. arrange the workplace to ensure safety and absence of risks to health in connection with use, handling, storage; and transportation of articles and substances;
C. provide at no cost to the employee, occupational health protection and personal protective clothing and equipment, which are appropriate for the nature of the job;
D. provide such information, instruction, training and supervision as are necessary to ensure safety and health of all employees;
E. prepare, implement and revise safety and health policy;
F. undertake studies and keep abreast of new scientific and technical knowledge necessary to comply with safety and health laws and regulations;
G. verify the effectiveness of applicable standards on occupational safety and health, periodically, using safety audits, environmental monitoring and health screening of workers and keep records of such verification including records of all notifiable occupational accidents; injuries, and occupational diseases, records of authorizations and exemptions, and data concerning exposure to specialized substances, agents and work processes; and
H. provide compensations for work related disabilities of workers and rehabilitation of such workers as reasonably practicable.
Osita Enwe et. al. (supra) state that occupational health and safety include the totality of activities and programmes that are engaged upon, aimed at attaining and maintaining highest level of health and safety for all employees in any type of work. This reasonably include protection against COVID 19, as a health hazard, which employees may be exposed to in the work environment.
Employer have a duty to provide employees with hand sanitizers, face mask and a cleaner work place. Employers may be liable in negligence to employee who contracts COVID 19 in the work place even though its liability may be limited to the employee’s compensation under employees’ compensation fund (the “Fund”).
Generally, employees cannot refuse to come to work for fear of contracting COVID 19 unless a co-employee has tested positive to COVID 19 and employee does not provide alternate work station or there is reasonable risk of contracting the virus in course of employment or employee’s proximate neighbours tested positive to it and there is need for self-isolation. An employee can also refuse to attend meeting or to travel if such is reasonably likely to endanger the employee’s health. In our view, Lagos, Abuja, and other States with good number of those who have tested positive can be locally deemed “high risk areas” and employers should unless absolutely necessary not allow employees to travel to Lagos or Abuja.
Employers with crowded workplaces have to review their facilities to ensure that it meets social distance guideline and, all other employers with high number of human traffic in the workplace have to ensure deep cleaning at the end of each working day and periodic extra-cleaning of all common areas such as desks frequently shared between employees and customers (bank-teller-counter, customers table and conference tables). – Facility cleaning employers have to ensure more effective personal protective equipment for its employees.
DUTIES OF CARE AND TO PROVIDE WORK
The employers’ duty to ensure health and safety of employers are consequences of its broad duty of care. It is unarguable, that economic implication of COVID 19 means that some employers may not be able to provide work for employees and, reasonable steps may be open to them. Although, employers should prioritize cost saving measures over redundancies.
We urge the Minister of Labour and Productivity to articulate and issue guidelines aimed at protecting Nigerian employers and employees from the harshness of COVID 19 in view of paucity of social benefits for Nigerian employees. These measures may include suspending personal income taxes until COVID 19 is contained. Self-quarantined employees may be allowed to draw from the fund while the Fund may be more clearly stated to apply to employees who test positive to COVID 19 including anyone who died, that is, if the employee contracted it in the course of employment.
OSH Policy requires employers to constitute safety and health committee, this may be a period to promptly comply with this legal requirement. In addition to its regulatory duty, safety and health committee may also ensure employees’ compliance to basic hygiene such as hand washing before and after using rest rooms, using of hand sanitizers upon exist and entry into work station and other facilities, temperature checks amongst others.
EXTENT OF MEDICAL INFORMATION EMPLOYEES MAY DISCLOSE
Can employers reasonably request employees to disclose if they are “risk-factor” to the employer? We return an answer in the affirmative. In short, Nigerian Data Protection Regulations 2019 allows employer to make this request or issue a policy mandating employees to disclosure whether they are themselves “risk factor” when it allowed data to be processed in compliance to a legal obligation – employer’s legal obligation to ensure safe and healthy workplaces overrides employees’ consent and mandates employees to make this disclosure.
Any employee who fails to comply with a policy requesting it to disclose if it is a “risk factor” can be held liable for misconduct. Any such policies may also mandate employees to report co-employees with symptoms such as fever, cough, difficulty in breathing, pain in the muscles, and tiredness, to the employer. – These are reasonable instructions in view of efforts to contain spread of COVID 19 in Nigeria.
These measures also apply to churches, religious movements or ministry as well as employers in formal or informal sector or public or private sector of our economy. Stay safe and compliant!