News and Articles
Wednesday, 03 June 2020 11:00
Health legal study Jointly provided by Taher Group Law Firm and Kuwait Medical International on occupational health and safety controls in private sector activities Under the pandemic conditions of the Corona Virus (COVID – 19) disease
Taher Group Law Firm and Kuwait Medical International has published a brief legal study reviewing the health and occupational safety regulations that should be observed by employers, workers, and clients/customers in the private sector,
and in those particular sectors that are allowed to conduct their business under conditions of a global pandemic threat, which are under a specific partial ban between 6 a.m. until 6 pm, in an unremitting attempt to avoid the effects and consequences of the spread of the epidemic and reduce it, by directing employers to abide by the decisions of the Ministry of Health towards providing health and occupational safety controls and directing workers towards taking the utmost precautionary measures in the individual confrontation of the damage of the epidemic and a commitment to personal safety, which is a necessary support of the country's efforts in these exceptional circumstances the country is going through in order to achieve public safety. This study has been submitted by Taher Group Law Firm along with Kuwait Medical International, with a desire to contribute to community service by supporting the private sector in the consideration of the fact that this sector is a major component of the national economy and a tributary and due to the redundant of health care provided in the government health sector, to create a culture whose purpose is to make such workplaces safe and secure for all who are there, as well as to enhance the confidence of the general public to gradually return to work in spite of non-diminishing effects of the global health disaster. This study has been prepared by Lawyers Abdulaziz, Khalid, Jamal Alkhateeb and Fawaz Khalid Alkhateeb from Taher Group Law Firm from the legal side, and from the medical and health side Dr. Muhammad Al-Jarallah and Dr. Ali Mahdi Zadeh, directors and partners of Kuwait Medical International and their medical team consisting of dozens of specialized doctors in many centers and clinics of their company throughout the State of Kuwait as they have a long history in the and experience in the field of health over the decades, envisioning from this joint study as well as participation in the untiring efforts in dealing with the epidemic of this age. The study presents the best professional practices that should be observed subsequent to returning to work partially, in light of the spread of the Corona Virus, and the study has been compiled from the most important sources: 1. The decisions of the Ministry of Health and the decisions of the Council of Ministers and related authorities. 2. A guide for gradual return policies, procedures and rules for work in government agencies prepared from the Civil Service Bureau. 3. International measures from which the study team examined guidelines to help employers understand how to work safely during the Corona virus epidemic, prepared by British officials and updated on May 25, 2020. 4. Kuwaiti Labor Law (Chapter Four on Occupational Safety and Health) Articles 80 to 97 of the law. 5. The rulings of the Court of Cassation which determined the necessity of employer’s commitment to undertake all necessary precautions, measures and methods of occupational safety and health while securing the work environment to prevent risks and take the means to protect workers from the risk of infection from the virus as well as the importance of training workers on the proper basis of executing their profession and informing them of the same before undertaking to practice work under the shadow of occupational hazards of the current conditions specific to (Corona Virus risk). The study also indicated the importance of obliging workers to use protective methods during the course of provision of services through appropriate personal protective tools and training them in their use such as (masks and gloves), and a standalone body temperature measuring device to check all those entering the company workspace whether they are employees or visitors to the facility at the expense of the employer in accordance with the law as one of the means to provide the necessary protections for workers. The law also stipulates that the employees must commit to using and wearing protective means and pledge to take care of what they have in their possession and implement the instructions issued by the employer to preserve and protect their health accordingly. It is necessary to ensure that the workers become accustomed to adhere to the preventive instructions and to preserve the means established to protect and exercise safety of all employed workers, all with the aim of limiting the infection of workers with the new Corona Virus and to avoid and reduce the payment of compensation for their infection by ensuring to follow the duty of care and diligence along with the application of prescribed preventive health controls and alerting workers to not violate the instructions with an intention to protect them from the dangers of work and the profession damages. Accordingly, the study indicates the importance of taking into account the establishment of organizational and educational controls to educate workers about the dangers of work under the current circumstances, taking into account the treatment of those risks, and monitoring the commitment of work sectors to preventive controls through internal committees formed for this purpose that prove in writing the procedures for detection and audit. The study covers seven main recommendations that must be taken into account, its application in the workplace with the aim of reducing infection among workers from the infections of the prevailing Corona Virus as much as possible. 1. Raising the awareness of epidemic risk: The study indicates the importance of employers educating their workers prior to the practice of their work/profession, the risks that they may be exposed to due to the Corona Virus and the means of prevention that they should undertake and recommends the development of instructions, guidance boards, posters in a language that shall be understood as well as warning signs in visible places at the workplace that urge commitment to the use of prevention methods which is the most important thing. The employer must also take care to ensure that the worker adheres to the preventive health instruction measures as well as the use of face mask, maintaining physical distance, preventing direct meetings as well as ensuring that the work surfaces and tools are not shared including not using their peer’s offices and ensuring that sterilization materials are regularly used. 2. Providing safety and protection equipment at the expense of employers: The study recommends that employers provide health safety tools such as face masks, gloves, and disinfectants/sanitizers required for workers, given that the epidemic will form a work hazard as a result of direct mixing among workers and with others. The employers must also provide means of protection that reduce their likelihood of developing an infection from the new Corona Virus through the importance of obliging the workers by using the means of prevention and their commitment to its use of what they have in their possession carefully, and implementing all instructions laid down for their safety in order to preserve their health and protect them from injuries and diseases. The study proceeds from this proposal to what has been legally established through the commitment of employers to provide appropriate means of protection to protect workers from the dangers of injuries and diseases that may occur during work, as well as all other dangers associated with the same. 3. Work as remote as possible: The study recommends that the facility be partially operated (gradually and flexibly) by encouraging those who can work remotely to achieve the desired social separation by taking all reasonable steps to help workers work remotely (Work from home). The study adds the importance of exempting those who are at greater risk due to the Corona Virus epidemic by exempting and being excused from direct work and assigned to work remotely such as (pregnant employee, the disabled, the elderly, those with chronic or serious diseases such as diabetes, pressure, heart disease, respiratory diseases, cancer, kidney failure and any other diseases) determined by the Ministry of Health. For those who cannot work remotely and for whom the official authorities did not require the closure of their workplaces, the preventive health measures recommended by the official authorities in the state should be observed, and direct friction or the circulation of papers and documents is minimized and replaced by electronic correspondence and audiovisual meeting in its place and should be duly followed The policy of adapting a cycle between workers by assigning some to direct work and others remotely on a weekly basis by following performance measurement reports to achieve the principle of remuneration for work. The study also indicates the preference for executing meetings through the means of modern technology (remotely) while, in the event that a direct meeting is necessary, the meeting room shall be properly disinfected through necessary sterilizations, ensure that the parties are free from symptoms of the disease and a two meters distance is observed between the seats of the attendees. The study recommends that the security personnel be assigned to the company's headquarters to ensure that the visitors wear the mask and use protective tools and means, and they are advised to observe the social distance, so that their temperature is measured before entering and refuse entry to all those who show symptoms of the Corona Virus. 4. Establishing epidemic risk assessment committees within the facility: The study recommends that employers establish a committee of managers to conduct a Corona Virus risk assessment periodically, following up on official authorities ’statements and consulting the committee formed by the facility’s managers, as well as in communication with trade unions. The study suggests that this committee should follow the directives of the official sources that publish the news and developments of the epidemic and everything related to health, safety and work, and recommends conducting epidemic risk assessments and take preventive measures in a written form, and in light of the developments that the formed committee is following, the principles and guidelines that are being implemented should be determined periodically. The study also suggests that the committee should conduct a periodic internal inspection of the facility to ensure that safety procedures are followed and that employers demonstrate compliance with their duty and preserve the lives of workers and the entity of the facility to limit the spread of the disease and to demonstrate that the facility has a duty of care in the event of a future conflict and in which the liability for negligence is raised, as the study indicates the importance of undertaking such measures. Employers should immediately report to the competent authorities (the police station located in his department, the Labor Department, the Social Insurance Institution, the Ministry of Health and the insurance company) if any of the workers are infected with the Corona Virus, and set clear plans in dealing with that infection and ensure that sterilization and examination procedures are taken in cooperation with the competent authorities. The study indicates that according to Kuwaiti law, a worker infected with the new Corona Virus has the right to receive his wages throughout the period of treatment determined by the doctor, and if the treatment period exceeds six months, he will be paid only half of the wage until he recovers or dies from the infection. 5. Maintaining the social distance of not less than two meters whenever possible: The study recommends redesigning the workspaces (especially the shared ones) by leaving at least two meters between the offices of workers in their workplaces, while minimizing the entry of visitors as much as possible, as well as organizing their entry with pre-agreed dates to prevent overcrowding and direct friction under the partial ban, while possibly creating one path in the direction of entry and a another path to exit the workplace, or to provide more entrances and exits, while changing the layout of the distribution of seats in the rest rooms. 6. Separating the offices of employees at checkpoints: The study recommends that employers consider looking at installing barriers in common spaces when it is not possible to separate the offices of employees from two meters, in such instances barriers should be installed between them, and that work patterns are created that prevent people from gathering in one place. The study also indicates the importance of providing recommendation and circulating in writing to workers on the importance of not visiting the office spaces/areas of their colleagues and limiting the communication between them through the landline or mobile phone, and the pursuit of such control should be applied through the committee formed by the employers to ensure the application of the rules of health and occupational safety. 7. Promote cleaning and sterilization operations: The study recommends employers to perform periodic sterilization and cleaning of the work places frequently, and to wipe surfaces with disinfectants to ensure sterilization, with a focus on high-usage places such as door handles and keyboards. It also recommends the provision of hand sanitizers throughout the workplace and at entry and exit points, as well as the provision of hand washing facilities, and monitoring the implementation of this by the committee formed to ensure that the proper application of safety measures in light of the spread of the Corona virus are observed and duly followed with. In conclusion, the study hopes to help reduce infection among workers from the prevailing Corona Virus by following the controls mentioned by employers in the private sector, as well as following the instructions of the official authorities in order to protect workers as well as employers, and limit payment of compensation for any unrelated infections With it, by following the duty of care and diligence, applying health controls and preventive measures prescribed by the official authorities, and alerting workers not to violate the instructions for the prevention of work hazards and occupational hazards through circulation and displaying such instructions in a prominent place at workplaces taking into account the provisions of Articles 95-96 -97 of the Labor Law, the study indicates that the responsibility of employers is not assumed by limiting infection among the workers from the Corona Virus, but must be proven that such infections were caused to the fault of the employer, and if such error is proven, then the question of the employer will be verified once the elements of fault liability are proven wrong and harm is caused due to the relationship between them, and therefore the right of the injured party is entitled to claim compensation whenever the injury of the worker occurred due to or during the course of the work or on the way to or return from it, and the assessment of the redress for all such elements of the damage according to the severity of the error and the amount of the damage that results from it and the extent of the contribution of the third-party error in its cause, it will be at the authority and judgment of the court which has jurisdiction over its subject matter on the grounds that has a valid origin in the papers which is considered, for example (Appeal No. 755 of 2014 My Workers 2, 5/6/2017 session).