Firstly, just a reminder, WIBA (Work Injury Benefits Act) is a legal benefit for all employees of Kenyan businesses who have any injury at work, or work-related illness(limited to a maximum of 8 years´ salary). For the full rules and benefits the Act needs to be read. Employers Liability (or Common Law Liability), is where an employer is sued for said injury or illness, claiming it is as a result of the ‘negligence’ of the employer (no time limit).
A lot has been written Worldwide about the latter of the two, Employers Liability, but WIBA is particularly unique to Kenya, and it appears no-one really has an answer. If someone contracts coronavirus, can they absolutely prove that it was work related? I imagine, some hospital workers would have a better chance of proving this, than say a building contractor? As of now, the Kenyan insurance market is ‘silent’ about the situation and I do believe this will continue for some time. I also feel that, in the event of a claim being made under WIBA, it will initially be rejected on the grounds of ‘proof of contagion’.
You do, however, need to consider the issue of Employers Liability. As mentioned earlier, for a claim to be successful here, there needs to be evidence of negligence. This does not, however, prevent a person, or a group of people, taking legal action ‘alleging’ negligence, at which stage you as an employer will need to defend yourself by appointing a lawyer and seeing the case through to the end. If you win, then great, but you will have incurred costs, if you lose, it is these costs plus any compensation you will have to pay.
What you need to consider now is “could employers be held liable in the event of infection with the virus?” A leading law firm in the United Kingdom has said:-
The message is clear, set up internal Covid-19 rules, advice lines, review health and safety, provide safe/safer working environments etc., and ensure your staff are fully informed and kept up-dated, alternatively you can ‘stick your head in the sand’ and you are there to be shot at!
If you have any questions related to any of the above please email us on [email protected] or call us on 254 (0)709 445 000.