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The gradual reopening of the economy and workplaces means that necessary measures must be taken to limit the spread of COVID-19. The National Labour Inspectorate has prepared guidelines for employers and entrepreneurs who intend to resume business activity.
Special measures to fight the coronavirus pandemic are required not only of the heads of public institutions, but also of private entrepreneurs.
What is the scope of managers’ responsibility in connection with the COVID-19 pandemic?
Failure to comply with occupational health and safety rules or principles at the workplace primarily carries financial consequences. Under Article 283 § 1 of the Labour Code, a person responsible for occupational health and safety in a company may be fined from PLN 1,000 to PLN 30,000. The penalty also applies to a person managing employees (such as the manager of a separate organisational unit or a foreman) or other individuals (such as contractors under mandate or specific-work contracts, or self-employed entrepreneurs).
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The above concerns liability for a misdemeanour. If failure to comply with occupational health and safety rules or principles creates an immediate danger of death or serious injury, the person responsible for occupational health and safety may instead be liable for an offence under Article 220 of the Criminal Code. This carries up to three years’ imprisonment; in the case of unintentional conduct, a fine, a restriction of liberty or up to one year’s imprisonment.
Criminal liability under Article 220 of the Criminal Code arises even where a single person is put at risk. Criminal provisions concerning public safety require separate consideration in this context.
Under Article 165 § 1(1) of the Criminal Code, endangering the life or health of many people by causing an infectious disease to spread is punishable by six months to eight years’ imprisonment. Criminal liability can also arise from unintentional conduct, punishable by up to three years’ imprisonment. If a person dies as a result, the penalty is increased accordingly: up to 12 years’ imprisonment for intentional conduct and eight years for unintentional conduct. Thus, if people managing an organisational unit fail to take appropriate safety measures despite a justified suspicion of coronavirus transmission and thereby contribute to the spread of COVID-19, managers may also be liable under Article 165 § 1(1) in conjunction with Article 2 of the Criminal Code. Where liability concerns the failure to take specific steps to prevent danger to the life or health of many people (according to legal doctrine, at least six), it arises only if the life or health of many employees is put at risk. The special legal duty to prevent a result, which is required for liability for an offence committed by omission, exists only in the employer–employee relationship. In particular, managers are not responsible for the safety of people unlawfully present at the workplace.
It should also be recalled that merely obstructing or preventing the activities of the State Sanitary Inspectorate is punishable by up to 30 days’ detention, restriction of liberty or a fine of up to PLN 5,000.
What rules should be followed so that employees return to work safely and entrepreneurs avoid penalties?
Risk classification
Employers must assess the level of risk, taking into account all new threats, including to mental health. Attention should be paid to unusual situations that could cause problems and to how the preventive measures adopted will help the company operate.
It is important that employees and their representatives take part in reviewing the risk assessment. According to doctors and psychologists, the coronavirus epidemic causes anxiety, stress and frustration in most occupational groups. A large amount of negative emotion, tension and uncertainty adversely affects reactions and behaviour at work.
Action schedule
After assessing risk, an action schedule should be drawn up that includes appropriate safety and control measures to enable safe work while preventing the virus from spreading.
Below is a list of measures necessary to eliminate or minimise the threat:
- provide personal protective equipment (such as professional disinfectants, disposable gloves, masks or face shields) in quantities appropriate to the needs of each job;
- limit the number of people working and present at the workplace, limit meetings, serve customers in rotation, use flexible working hours, contact customers online where possible and, otherwise, limit the number admitted at one time;
- disinfect and ventilate the workplace, especially surfaces frequently touched by people on the premises; designate zones that increase the distance between employees and between employees and customers; limit cash payments;
- train employees in how to reduce the risk of infection and repeat communications;
Another measure affecting safe and hygienic working conditions during the pandemic may be measuring the body temperature of employees and visitors. A basis for measurement may be derived from Article 9(2)(b) GDPR in conjunction with Article 207 § 1 and § 2 points 1 and 3 of the Labour Code and Article 3 in conjunction with Article 2 of the special act. However, as these provisions do not unequivocally grant the employer this power, the employer may apply to the Chief Sanitary Inspector under the special act for a decision ordering such a measure.
Note!
An employer cannot refer an employee for tests on suspicion that the employee is infected.
During a pandemic, fulfilling the duty to provide safe and hygienic working conditions is certainly a difficult task.
Employers must reorganise their workplaces, adapting them to the level of threat and the type of work performed by their employees. Otherwise they should not allow employees to work, while still providing full pay.
The employer, regardless of the epidemic situation, always has the duty to ensure suitable workplace conditions and assess whether they are safe enough to admit an employee to work. Every workplace differs, so employers should decide for themselves which measures they can and wish to use.
Source: Ministry of Family, Labour and Social Policy
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