How to mitigate risks of employee civil liability that arises due to COVID-19 in Guatemala?
Given the presence of COVID-19 in Guatemala, questions are raised about how the risks in terms of employer civil liability should be mitigated.
For this purpose, three scenarios that have been presented since the beginning of the pandemic will be presented and will be analyzed by the following aspects:
a) What are the risks?
b) What risks have already occurred?
c) How does the law operate in these cases?
Case #1: An industrial factory with a massive spread of COVID-19.
This situation gives rise to the intervention of Labor Authorities, whose responsibility is to verify that the obligations regarding occupational hygiene and safety are fulfilled. The consequence of failing to comply with these obligations is the possibility of incurring a lack of work and of issuing warnings to the employer, set out in acts that serve as a means of evidence for judicial records of lack of work.
Case #2: A commercial establishment in which an event is carried out in contravention of the rules of the state of exception.
In this case, the Public Ministry intervenes with a criminal process for non-compliance with the imposed provisions derived from the pandemic. Criminal action always involves action to determine civil liability with a remedial action that goes beyond civil liability.
Case #3: A call center in which some collaborators present complaints about the presence of infected people who are not suspended and continue to work, and who, in addition, continue to be transported together with non-infected collaborators, which leads to prevention with the imposition of fines by Labor Authorities.
Risks associated with operating in times of pandemic
1. The services that currently operate may be at risk of having infected employees. For example, there is still a “paper culture”. Many of these workers receive many papers and these can be transmitters of contagion.
2. Issuance of a new set of standards for the reopening process (the “new normal”). New responsibilities are generated due to failure to comply with new regulations or due to the reopening phases.
3. Guatemala has a reopening project through a traffic light system with different provisions applicable to municipalities, depending on the situation in which it is in terms of infections.
This leads us to be very vigilant and to know the phase in which the country is and, specifically, the municipality in which the companies are located, so as not to fail to comply with the regulations that are in force at that time. Civil liability derives from non-compliance with these standards and the fact that such non-compliance can be demonstrated.
The reopening by the traffic light system must be taken into account in all the locations where a service is being provided so as not to breach any of the regulations applicable to the respective locality. The practical difficulty is in knowing what regulations would apply to each municipality where they are working; the problem occurs in those businesses with national coverage, in which case they must be very well informed so as not to fail to comply with the regulations established by the Government.
There are three reasons for these standards:
- Avoid infections and, in the case of employers, protect employees.
- Try to avoid some type of sanction by the authorities.
- Failure to comply with the regulations has a direct implication regarding an event of liability, whether employer, civil, or even criminal.
Attribution of Civil Responsibilities - cases where someone could seek some type of civil liability.
1. A person dies infected and her/his family attributes the death to contagion in the workplace or because of the type of work she or he does.
The general rule is that the pandemic causes fear, fear causes apprehension to go to work or leave, and the tendency in these cases is to attribute blame to the closest cause, which in this case is having gone to work, but there are other possibilities of contagion.
Although the person's death occurred as a result of going out to work, the authorities are reviewing whether the workplace was complying with the rules and whether there were more cases of contagion. Therefore, it is recommended to have the evidence to defend the fact that all the preventive measures requested by the Guatemalan Social Security Institute have been complied with.
In these cases, the key question is if there is only one person infected and if that person was infected in the workplace or if it was infected in another place or by a family member. This implies that the source of contagion is indefinite and that constitutes the fundamental defense of the employer.
Now, the effect in these situations is to analyze that you have, for example, a third of the employees infected and that there are measures that the employer did not take. This situation can lead to the presumption that the cause of the responsibility comes from an omission by the employer. That is why it is important to take preventive measures.
2. A person becomes seriously ill and is admitted to intensive care, product an infection of Covid-19 and there is no social security coverage.
3. A client goes to an establishment, becomes seriously ill, and dies. It is intended to attribute responsibility, but it is proven that the establishment did comply with all the requirements.
4. Social networks or media that attribute place as a source of contagion and clients and collaborators attribute their contagion by going to said center. The posts on social networks must be stopped from the beginning because there is a snowball effect, and the tendency is to attribute civil liability and request for compensation.
Possible liability scenarios
Types of liability
The social security system is the primary provider of liability for illness. Article 197 of the Guatemalan Labor Code indicates the employer's obligation to comply with the recommendations and all preventive measures requested by the Guatemalan Social Security Institute. That implies a responsibility for lack of work, and it goes in three ways:
1. Liability for lack of work - a fine applied by the Labor Inspection.
2. Responsibility to be registered with the Guatemalan Social Security Institute and if the employer's obligation to cover that part of social security is not registered.
3. Employer civil liability derived from non-compliance with hygiene and occupational safety measures and is determined in an ordinary labor trial.
The question is whether Covid-19 can be considered an occupational hazard or not. If the preventive measures are taken, it shouldn’t be. In case the measures weren’t taken, it could be considered as an occupational risk.
Objective Liability: all damage must be compensated.
- From the business owner
- From the property owner
- From the employer
With dignified reparation in favor of crime victims.
Closings and / or fines for non-compliance with sanitary measures or hygiene and safety at work.
Who can be responsible for:
In the case of local owners, they are subject to sanction for non-compliance with articles 1931 and 1932 of the Civil Code. The property owner has to be aware of what the tenant is doing.
You have to understand who is going to be sued and anyone who has the ability to pay is going to be sued, not necessarily who has the responsibility. And if you can attribute the responsibility to the owner because the tenant went bankrupt, then the owner of the premises can be a target to be sued.
Ways to mitigate risk
In labor matters, a document can also be issued to the employee explaining the risks of operating in a state with Covid-19 and / or a consent in which the collaborator acknowledges that this reality exists and is responsible for complying with the prevention standards required by the employer.
The general rule is to comply with the regulations and to prove that they are being complied with, as well as the instructions (taking the temperature, providing alcohol gel in the, amongst others) and establishing the means of proof. It is important to have information documents, define what are the measures to be taken and that the collaborators know the security measures.
Non-legal factors that influence the determination of civil liability
The Labor Inspector has the right to appear and verify compliance with the standards because it is within their powers.
Business owner's attitude towards collaborators
• Be supportive but without assuming responsibilities that are not their own.
• Give intervention to authorities.
Attitude towards authority
- Respectful and reasonable attitudes.
- Have the evidence that indicates compliance with the regulations.
- The focus should be on obtaining evidence of prudent attitudes in the business.
- Informed consent or some other document that certifies knowledge of irrigation.
Insurance can collaborate as a very important measure in risk mitigation, compliance with safety regulations will not be enough. The financial needs of the affected person may be greater and if there is civil liability, it is important to have support in the transfer of the risk to a third party.
Determining factors for the validity of a potential claim:
1. Coverage - civil liability for accident or injury. Review what is the coverage you have.
2. Policy exclusions - legal and regulatory compliance.
3. Deadlines, a form of claim and proof of claim.
4. Sentencing or arbitration award.
5. Time of intervention of the insurer according to the policy.