With the continuing spread of the Ebola virus in West Africa and reports of cases outside the region, concern about the outbreak continues to grip public attention. This troubling situation brings into sharp focus the terrible consequences that infectious disease outbreaks can have on national and global populations.
In the context of businesses and workplaces, such health threats create significant risks for the workforce in terms of both workplace health and safety and business continuity. Therefore, it is worth reflecting on the obligations and responsibilities of employers in the face of a health threat, be it Ebola, avian flu, the H1N1 virus or other contagious diseases, in the context of Thai labour law.
One of the basic obligations with which employers in most jurisdictions including Thailand must comply is to provide a safe workplace. Section 6 of the Occupational Safety, Health and Environment Act requires an employer to provide and keep a workplace and an employee in safe and hygienic working conditions and environment including "preventing the employee from any harm to life, body, mentality and health". Employers must assess if they are meeting this obligation in the event of an outbreak or potential health threat.
One consideration is whether the employer must develop a specific response plan to ensure the safety and health of employees before, during and after an outbreak. Employers must assess whether they have put in place all necessary measures to ensure their workers have the right protections. Communication with employees regarding their employment conditions such as benefits and welfare or their workplace in the event of an outbreak is also important to maintain a good relationship and avoid disputes arising.
An obvious question that comes to mind is whether employees have the right to refuse to attend to work if there is a risk of an outbreak or health threat. Much depends on the circumstances, but the key is to assess the fairness and legitimacy of an employer's order. A number of factors must be taken into account including the job description of the particular employee, terms and conditions of the employment contract and protection measures provided by the employer.
Section 14 of the Act requires an employer to inform an employee of danger that may arise if the employee is assigned to work under conditions that may be harmful and to distribute a work manual to each employee before work begins.
If the duties as stated in the employment contract or job description knowingly or expressly involve risks, and the employer provides all appropriate protection measures, the employer's order may be considered legitimate and fair in certain circumstances. Obligations of both employees and employers under the contract must be assessed in this regard.
The law requires an employer immediately to report a work-related injury or sickness to the Social Security Office and submit a copy of the report to the safety inspector within seven days. This obligation relates specifically to an injury or illness that resulted from a specific task that an employee carried out, but as opposed to an event of an outbreak, employers should still consider complying in order to safeguard the workplace in general.
In addition, the employer should consider ordering employees to report immediately if they have or suspect a given disease as well as reporting to government health officials.
There are a host of other issues that employers would be prudent to assess in order to know their obligations before a situation arises. Some of these are:
the company's liability in the event of an employee contracting the disease in the course of work-related activities;
whether outbreak-related health costs are covered under company benefits and policies and/or by the government;
business interruption insurance;
communication to make information about the disease including reporting procedures readily available to employees;
working arrangements during an outbreak — for example, wages and entitlements, working from home and leave entitlement;
appropriate precautionary measures to protect a safe workplace — for example, ordering employees suspected of contracting the disease to undergo medical examinations or work from home while continuing to pay wages;
potential demand for danger pay for performing normal work in an environment that entails health risks and entitlement to compensation in the event of disease contraction;
assistance to families and rehabilitation of employees involved;
if screening of employees can be done without breaching privacy issues and whether mechanisms in place.
The above are some of the issues employers should consider in order to prepare for any potential health risks that may have a significant effect on the workforce to protect their employees and businesses without additional exposure.
Suriyong Tungsuwan is a partner and Nam-Ake Lekfuangfu a lawyer at Baker & McKenzie Ltd in Bangkok.