The global debate in dealing with Covid-19 has been Lives vs Livelihood.
As countries begin to ease lockdown restrictions and embrace external social
distancing measures, the consensus is that lives and livelihood are not
mutually exclusive in living with Covid-19. Governments globally have published
rules the public and employers must adhere to in returning to the office. In
deciding whether employees should return to the physical location of their
offices, employers must note that they may be liable for damages suffered by
any employee who contracts the virus in the line of duty.

In the United Kingdom and Nigeria for example, guidelines for companies
resuming physical operations include ensure temperature testing machines are
available for testing of individuals before entry, hand sanitizers and wash
basins are provided at entry points of the building, company vehicles and
environments are frequently sanitized, 
office occupation does not exceed 60% capacity at any given time and
1-2meters distancing is observed.

Employers’ Duty of Care

Under common law, an employer has a duty of care to ensure the health
and safety of his employees and where there is a breach of this duty, the
employer will be liable in negligence. Lord Oakley said in Paris v. Stepney
Borough Council (1951) AC 367 at 384 that: “The duty of an employer towards his
servant is to take reasonable care for his servant’s safety in all the
circumstances of the case”.

Per Muhammad, JSC held in Iyere v.
Bendel Feed and Flour Mill Ltd (2008) 18 NWLR (Pt. 1119) 300, thus: “The
general requirement of the law where there exists a service relationship
between employer and employee is that the former is under a duty to take
reasonable care for the safety of the latter in all the circumstances of the
case so as not to expose him to an unnecessary risk. The level of this duty is
the same as that of the employer’s common law duty of care in the law of
negligence

In Nigeria, the employer’s duty of
care to the employee is provided  in
several legislations: i)Section 17(3) (b)-(d) of the 1999 Constitution
provides that the state shall direct its policy towards ensuring that
conditions of work are just and humane, 
ii)The Labour Act provides for the protection of the health and
welfare of employees, iii) Factories Act provides for the protection of
the safety, health and welfare of workers exposed to occupational hazards by
taking measures to prevent accidents and injuries, iii) The Employees
Compensation Act 2007 (ECA) Section 7 of the ECA provides that any
employee, whether or not in a workplace, who suffers any disabling injury
arising out of or in the course of employment shall be entitled to payment of
compensation in accordance with the Act.

Extent of Employers’ liability

Where it is proven that an employee contracted Covid-19 as a result of
the employer’s failure to ensure the provision of a conducive working
environment for the employee, such employer will be liable to compensate the
employee or his dependents-where employee dies- in accordance with Part IV of
the ECA. If a deceased employee’s dependent is unable to lay claim to
compensation under this Act, compensation may be obtained under common law
doctrine of negligence.

Burden of Proof

To establish
liability, an employee must not only prove breach of duty, but also that the
breach made a material contribution to the injury sustained. It is likely to be
difficult for an infected person to prove that their condition was caused by a
workplace breach, given the many other potential sources of infection, on the
balance of probabilities. An employer who can prove it has applied the
Government guidelines having regard to the characteristics of its business and
workforce, should be well-placed to defend claims brought against it.

It should also be recognized that employees are under a duty to take reasonable care for their own health and safety and that of those they work with, which includes following instructions given which are designed to protect them and others. An employer can rely on willful disregard for an employer’s instructions as a defense or as contributory negligence

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