By Bassey Edet Jr Esq.
An employer receives a mail from one of his Employees who works from home, the mail informs him, that while she was ‘’working’’ from home, she sustained an injury due to an accident. He eventually learns that he is liable to pay compensation for the injuries as her Employer under the law and he is puzzled because he cannot ascertain whether employees working remotely are covered under the Employment Compensation Scheme.
The Employee’s Compensation Act, 2010[i]is a social security/welfare scheme that provides comprehensive compensation to Employees who suffer from occupational diseases or sustain injuries arising from accidents at workplace or in the course of employment. The basis or justification for ‘compensation’ is the employer’s duty of care.[ii] The workings of the compensation operate to prevent the costly and slow walk to justice that maybe encountered in the Civil Courts.
According to the International Labour Organization, due to the spread of Covid-19 by the end of April 2020, global Corona virus infections had exceeded 2.8 million cases; with the death toll nearing 195.000; it is now affecting 210 countries and territories.[iii] With a growing number of countries facing the Covid-19 crisis, nation-wide or local initiatives are being taken to prevent the spread of the deadly virus. The virus has caused a radical shift in the way and manner work is being done and caused the rules of work engagement to be rewritten in the most dramatic way. With the shift, Employees now work remotely from artificial workstations mostly their homes for their Employers.
With the lock down gradually phasing out, accidents and injuries sustained at home will become a topical issue. Questions of who should be held liable for injuries sustained by workers working remotely will be on the front burner of labour related issues. It is fairly easy to determine liabilities when it is occasioned within the premises of the Employers, but why that liability is supposed to borne by the Employers especially when they cannot give account for the actions of the Employees becomes imperative.
This article simply assesses the framework on accidents/ injuries in the course of work, especially as it relates with remote working under the labour laws in Nigeria and explore options of how Employers may protect their interests.
The basic objective of an Employment Injury Benefit (EIB) scheme[vi] globally is to ensure workers and their families a certain level of income in the case of disability or incapacity for work due to accidents and diseases related to work. This form of compensation is a fundamental labour right.
According to the International Labour Organization (ILO), approximately 2.3 million people die from accidents and diseases related to work each year. The daily death toll amounts to some 6,300 persons. The ILO estimates that approximately 337 million occupational accidents occur annually and work-related diseases affect an additional 160 million people around the world.
The ILO posits that economic losses due to accidents and unsafe working conditions exceed 1.25 trillionUSD per year, which is equal to 4% of global GDP. Workers bear the greatest costs, including pain and suffering, and loss of capacity to work. These losses can never be fully recouped. A significant loss of productivity must also be borne by the Employers. Across the developed world, governments and their social partners have created social security schemes to provide partial or full compensation for wage losses due to occupational accidents and diseases. The costs of medical care, rehabilitation, and cash support for survivors are also under the coverage of national social security schemes, namely employment injury benefit schemes[vii].
Due to the pandemic, according to the ILO now casting model, global working hours declined in the first quarter of 2020 by an estimated 4.5 %(equivalent to approximately 130 million full-time jobs, assuming a 48-hour working week), compared to the pre-crisis situation (fourth quarter of 2019).[viii]
Global working hours in the second quarter are expected to be 10.5 % lower than in the last pre-crisis quarter. This is equivalent to 305 million full-time jobs, which represents a significant deterioration on ILO’s previous estimate of 195 million for the second quarter. This has been driven mainly by prolongation and extension of containment measures[ix] by governments of different countries[x].
Granted that some Employees have had to function from their homes, and possibly after the government finally phases out the lockdown, some businesses will be looking at making remote working a permanent feature of their business makeup, basically to maximize and enjoy the benefits that come with it, but all that is dependent on the architecture of the business.
The employer’s liability under labour law, is basically dependent on; (1) Duty of care and (2) Duty to provide a safe work place. The Employer’s duty to provide a safe working environment is imposed to ensure that the Employers will try to prevent occupational hazards that may lead to injuries on Employees in the workplace.
Since working remotely seems to be the new norm, having created circumstances where the employer cannot control the premises of his Employees, how then is he supposed to go about it?
To fully address the issue, it is pertinent to define some important terms[xi] relevant in this article.
a. “Injury” includes bodily injury or disease resulting from an accident or exposure to critical agents and conditions in a workplace ;
b. “Occupational Disease” means a disease contracted arising out of or in the course of exposure to risk factors at work ;
c. ”Reasonable Hour” means from 6am-6pm;
d. “Workplace” includes any premises or place where a person performs work or needs to be or is required to be in the course of employment;
e. “Work-Related” in reference to a disability of an employee means a disability arising out of and in the course of employment of an employee.
The position of the law as stated in section 7 of Employment Compensation Act, states that:
7.—(1) ‘’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 Part IV of this Act’’.
The basis for liability from the above position is, if the action the employee was engaged in was an act ‘’arising out’’ of or ‘’in the course of employment’’ i.e. is the action of the employee in the interest of the company/employer? If the company did not assign that duty to him would he be carrying out same? And is the activity done during the currency of the employment?
So, if the employee was working on an assignment within the reasonable time for work, i.e. the company’s usual working hours; any injury occasioned then will be borne by the employer. To further stretch it, if the employee had to attend a meeting outside the premises of the company and on returning to the office, is knocked down by a vehicle, provided that the meeting was held in the interest of the company, the employer will be liable.[xii]
In Acker v Charles R.Burklew Construction[xiii], although a foreign case, the court said the relevant risk was that the employee might trip over her dog while reaching for a coffee cup in her kitchen. That risk exists whether the employee is at home working or whether she is at home not working, it existed before she took her job, and it will exist after her employment ends (so long as she maintains a home with a dog). Because the risk did not ‘’arise out of’’ the employment, the court of Appeal in the USA, in a well-reasoned decision announced that her injury was not in the course and scope of employment.[xiv]
It would appear the burden of proof is almost against the Employers as evinced in section 7 (4), which states that:
(4) ‘’Where the injury or disease is caused by accident and the accident arose out of the employment, unless the contrary is shown, it shall be presumed that the injury occurred in the course of the employment.’’
Hence, should the employer seek to challenge the Employees assertion, he must do so convincingly.
Is remote working addressed by the act and what are the parameters if any for liability?
Although, not elaborately stated, it appears the act in Section 11 may have answered the question in the positive. Let us examine same;
11. ‘’Where the injury to an employee occurs while the employee is working outside the normal workplace which would otherwise entitle the employee to compensation under this Act if the injury occurred in the workplace, compensation shall be paid to the employee under this Act ..—
The import of the above section informs of the possibilities and the conditions that will exist to invite ‘’remote working’’ under its coverage.
a. THE WORK MUST HAVE BEEN ‘’OUTSIDE THE NORMAL WORKPLACE’’: The workplace contemplated here includes any premises or place where a person performs work or needs to be or is required to be in the course of employment; in the course of the Covid 19 and due to government sanctions, it has been established that some Employees who did not lose their jobs, had to carry out their functions outside the normal workstations, meaning any other place outside the normal workplace being the registered address of the business, qualifies as a work place. In a nutshell, all Employees’ houses and artificial arrangements where work is being carried on, were and/or are now an extension, counterpart offices of the registered address of the employer.
b. THE NATURE OF THE BUSINESS OF THE EMPLOYER EXTENDS BEYOND THE ‘’USUAL’’ WORKPLACE[xv]: The nature of the business will be where the kind of ‘’work or business’’ is conducted outside the normal offices. Assuming, ‘’remote working’’ was not the contention of this article, the question will be, if a Dangote truck driver whose duty is to transport items from the ‘’office’’ to where he is being assigned to gets injured along the way, will the employer be liable? The answer is n the positive. He will be. There are offices whose Employees such as engineers do not necessarily have to operate from the desk or the main offices, in such instances Employers will be liable for any injuries occasioned.
In reference to remote working, if the employee still conducts/carries any assignment that will demand him leaving his primary workstation, now his home, to execute daily tasks that are always done in the office, on normal work days, and he gets injured, then he will qualify for compensation.
c. THE NATURE OF THE EMPLOYMENT IS SUCH THAT THE EMPLOYEE IS REQUIRED TO WORK BOTH IN AND OUT OF THE WORKPLACE ; OR COMPENSATION FOR INJURIES OCCURRING OUTSIDE THE NORMAL WORKPLACE[xvi]:
d. THE EMPLOYEE HAS THE AUTHORITY OR PERMISSION OF THE EMPLOYER TO WORK OUTSIDE NORMAL WORK PLACE[xvii]: If an employee is still in possession of the company’s equipment and still being issued instructions, it suffices that any official work carried out by the employee is subject to instructions from the employer or company officials. Where it can be shown, that the injury was occasioned while the employee was carrying out his personal business, the employer will not be liable.
In Martinez v State Office of Risk Management[xviii] a caseworker for the Texas Department of Family and protective services was injured while working at home on a Saturday while sitting at her kitchen table decided to retrieve a different pen from the other side of her kitchen. She purportedly tripped and fell during the dangerous maneuver, breaking her shoulder and hitting her head in the process. Her claim was denied because she violated the agency policy by working from home without prior approval. Even though the Commission concluded that Martinez was “furthering the business and affairs” of her employer at the time of her fall, her injury did not arise out of nor occur in the course and scope of her employment. Martinez appealed and the Court of Appeals noted that the Texas Labor Code’s definition of “compensable injury” requires that the injury arise “out of and in the course and scope of employment.” (Which is similar to the conditions and provisions of the Nigerian ECA) Tex. Lab. Code Ann. § 401.011(10) provides for liability to exist, two elements are required:
a. the injury must relate to or originate in … the employer’s business. SeaBright Ins. Co. v. Lopez[xix], (known as the “arises out of” element), and
b. the injury must “occur in the furtherance of the employer’s business.” Id. (known as the “course and scope element”).
In reaching its decision, the court held that the injury was not compensable, because she had no prior authorization. From the above it can be concluded that even though the employee’s home is a workstation, a fundamental provision to be complied with for all intent and purposes is that the assignment or whatever led to the injury must have been work related and instructions given for same to be carried out.
There are certain conditions such as the under listed that may guide the court in reaching its decision on matters of this nature:
a. Control Test: Under whose instructions was the employee operating, and was the employee trying to execute the job assignment given by the employer?
b. Adequate Provision of Work Tools: has the employer provided adequate work tools to enhance the work efficiency of the employee? Could it be that in the course of trying to carry out the work the employee became injured as a result of inadequate tools?, such as a defective laptop blowing up in the course of work?
c. Deadlines: Due to instructions and nature of work to be carried out, was there a deadline to be reached which may have caused undue pressure[xx] ? Through which the employee became injured?
How are damages to be determined?: Unlike civil actions where the employee may sue and claim for both special and general damages, under the scheme, the employee is limited to payment of compensation in accordance with Part IV of the Act as provided by section 7 (1) of the Act. Meaning the employee cannot go beyond what is stated in the act.
THE OTHER COIN:
On the flip side, questions such as what if the employee was engaged in activities that were not work related or the employee was simply negligent in carrying out instructions, how will this be addressed? These are some concerns that Employers will likely raise. What if the employee was negligent?
In cases of this nature, the general principle is that compensation is paid on a “no fault” basis, such that the injured worker or the dependant of the deceased employee is entitled to compensation, regardless of who is at fault. The employee is typically covered by the scheme. It is assumed that courts usually err on the side of covering Employees’ injuries in workers compensation disputes.[xxi]
This principle is mutatis mutandis with section 5 (a) of ILO Recommendation No. 121 of 1964 concerning Benefits in the case of employment injury, which provides for benefits in the event of accidents, ‘regardless of their cause’ .
Another dilemma however, is how can an injury be ascertained to have been in the ‘’course of work’’ while the employee is working remotely. This is the challenge and a question that will need to be answered objectively.
In Verizon Pennsylvania v Workers Compensation Appeal Board (Alsto),[xxii] the employee was working remotely at home when she fell down the stairs to her home office and injured her neck. She was working from her basement and left her basement office to go upstairs to the kitchen to get a drink. She returned in a hurry to answer a ringing telephone and fell down the stairs in the process. She filed a claim insisting that she was furthering her Employers business interests at the time (trying to answer the ringing phone), but was doing so while returning from getting a drink. The employer argued that she was not in course and scope because she had gone upstairs to get a drink.
ECONOMIC INCENTIVES FOR PREVENTIVE MEASURES:
As much Employers will love to fight and protect their own interests, the main losses and hardships resulting from any accident falls primarily on its victims, Employers face heavy collateral losses as well. The accident costs for Employers are very high, especially the hidden costs related to work disruption, material losses, retraining, etc. These hidden costs can be up to 30 times higher than the direct costs. There are also some immeasurable costs which the Employers have to bear, such as degradation of the reputation and social trust. The ILO demonstrates this through the iceberg model. It advisable most times for Employers to weigh the costs before engaging Employees in legal contests.
PROTECTION/BAR FROM CIVIL LAWSUITS: Employers should understand that related claims or injuries from the remote works if addressed through the compensation scheme may just provide Employers with protection in employee civil lawsuits. It is not a civil liability shield or immunity for businesses, but it does provide a clear path to prevent an employee from getting both workers compensation insurance benefits and civil damages. [xxiii] The fact that the Employees cannot claim over and above what is stated in the act, to an extent maybe a desirable factor for the Employers.
The Employee Compensation Scheme outlines: the scheme enlists preconditions that must be followed once an injury is occasioned and the employee is supposed to report same immediately afterwards.
PROCEDURES FOR MAKING CLAIMS[xxiv]
(1) In every case of an injury or disabling occupational disease to an employee in a workplace within the Act, the employee, or in case of death the dependant, shall within 14 days of the occurrence inform the employer by giving information of the disease or injury to a manager, supervisor, agent in charge of the work where the injury occurred or other appropriate receipt of the information of the employer, and the information shall include—
(a) the name of the employee ;
(b) the time and place of the occurrence ; and
(c) in ordinary language, the nature and cause of the disease or injury if known.
(2) In the case of a disabling occupational disease, the employer to be informed of the death or disability is the employer who last employed the employee in the employment to the nature of which the disease was due.
(3) The employee shall, if he or she is fit to do so and on request of the employer, provide to the employer particulars of the injury or occupational disease on a form prescribed by the Board, and supplied to the employee or the dependant by the employer.
(4) Failure to provide the information required under sub-section (1) of this section is a bar to a claim for compensation under this Act, unless the Board is satisfied that the—
(a) Information, although imperfect in some respects, is sufficient to describe the disease or injury suffered;
(b) Employer or the employer’s representative had knowledge of it; or
(c) Employer has not been prejudiced, and the Board considers that the interests of justice require that the claim be allowed.
It is important that both Employers and Employees understand that the rules of engagement have changed and should be guided appropriately. The Employers are enjoined to ensure that the working conditions of the Employees are in order, and where issues of such nature arises, seek legal counsel on how to proceed. Employees should exhibit extra diligence in the carrying out of their duties to prevent injuries on themselves that may cause negative impacts in the long term.
The courts will however treat each case that comes before it, on the uniqueness of facts, should it get to the level where both parties cannot reach an agreement at the board level.
are enjoined to carry out health and safety audits where the business of the Employers
are still carried on, or confirm from the Employees whether their workstations
[i]The Employment Compensation Act ENACTED by the National Assembly of the Federal Republic of Nigeria and commenced on the [17th Day of December, 2010] is an Act that repealed the Workmen’s Compensation Act cap. W6 LFN, 2004, to make provisions for compensations for any death, injury, disease or disability arising out of or in the course of employment; and for related matters.
[ii] Michael Dugeri: ‘’The Employee’s Compensation Act, 2010: ISSUES, PROSPECTS AND CHALLENGES’’ pg 1
[iii] Data compiled by Johns Hopkins University available here: Johns Hopkins University Center for Systems Science Engineering, https://gisanddata.maps.arcgis.com/apps/opsdashboard/index.html#/bda7594740fd40299423467b48e9ecf6.
[v] Section 7 of the Employers Compensation Act (ECA) 2010
[vi] The terms “employment injury benefits”, “occupational accidents and diseases compensation/benefits” and “workers compensation” are frequently used interchangeably. “Workers compensation” is the older term, generally used to refer to schemes which provide benefits in the case of death and incapacity due to accidents at work and, later, due to prescribed occupational diseases as well. The term “Employment Injury” is used as the ILO term to cover both accidents at work and occupational diseases (ILO, 1986).
[vii] While many enterprises in developed countries are adopting a zero accident policy as their goal, the enterprises in transition countries are not yet at this stage, nor are they able to properly identify the hazards causing occupational accidents and diseases.
[viii] ILO Monitor: COVID-19 and the world of work. Third edition Updated estimates and analysis: 29 April 2020, Pg. 1
[ix] ILO Monitor: COVID-19 and the world of work. Third edition Updated estimates and analysis: 29 April 2020, Pg. 1
[x] Mauritius has focused on tax and financial facilitation measures comprising the removal of penalties for those taxpayers unable to submit returns due to the lockdown) and employment-related measures in the form of Wage Scheme Assistance to ensure that economic operators maintain essential economic activities. Operating constraints remain led by a national confinement which started on 18 March 2020 and sanitary curfews limiting movement of human capital in an effort to quarantine the Coronavirus. Distribution activities, retail and customs are operational to enable the clearance of goods and outgoing passengers.
[xi] Section 73 of the Interpretation Act, of the Employee Compensation Act
[xii] (2) An employee is entitled to payment of compensation with respect to any accident sustained while on the way between the place of work and—
(a) The employee’s principal or secondary residence;
(b) The place where the employee usually takes meals ; or
(c) The place where he usually receives remuneration provided that the employer has prior notification of such place.
[xiii] 654 20.2d 1211 (Fla. App. 1995)
[xiv] Gary l. Wickert ‘’When Employees Work From Home: Work comp subrogation and the Remote Employee’’
[xv] (a) the nature of the business of the employer extends beyond the usual workplace
[xvi] (b) the nature of the employment is such that the employee is required to work both in and out of the workplace ; or Compensation for Injuries Occurring outside the normal Workplace
[xvii] (c) ‘’The employee has the authority or permission of the employer to work outside normal work place’’.
[xviii] 582 S.W. 3d 513 (Tex. App.-San Antonio 2018)
[xix] 465 S.W.3d 637 (Tex. 2015)
[xx] (2) Where the mental stress is caused as a result of the decision of the employer to change the work, the working conditions of work organization in such a way as to unfairly exceed the work ability and capacity of the employee thereby leading to mental stress, such situation shall be liable to compensation to the degree as may be determined under any regulation made by the Board.
[xxi] Leah Easterby ‘’What If I Am Injured While Working From Home During The Covid 19 Pandemic’’
[xxii] 900 A.2d 440 (Pa. Cmwlth 2006.)
[xxiii] Aaron Colby ‘’ The Workplace And Covid 19: Workers Compensation To The Rescue?
www.forbes.com/sites/aaroncolby/2020/05/13/the-wo accessed on the 28th of May 2020
Bassey Edet Jr is a Tax and Labour regulatory counsel. He loves to research and is a sports enthusiast.