Despite the WHO formally declaring the global outbreak of COVID-19 a pandemic nearly three months in, this is just at the start of the story. We are seeing aggressive actions by governments around the world, at a scale never seen before, in an attempt to curtail the spread of the virus but for every action, there is a reaction. The largest crash in the price of oil in decades related to the OPEC decision to cut oil production linked to the implications of COVID-19 is evidence of that.

With no confirmed case (yet) offshore in the UK North Sea, our experts from across the firm focus on the unique legal issues that may arise around responses to COVID-19 for those operating or working offshore. The situation is changing daily, sometimes by the hour. Here we look at important issues involving your people – their health and safety and pay. Please get in touch with a member of our COVID-19 Response Team if we can help on these or any other issues and check in on our COVID-19 Hub for additional updates.

Looking after your people

Health and safety duties

Employers have a legal duty to take all reasonably practicable steps to ensure the health, safety and welfare at work of all employees.  That general duty extends to protecting others affected by their work activities, including contractors and the public.

So how do you discharge your duties in relation to the virus? The unique operating environment offshore creates its own challenges in addressing the risks associated with COVID-19.  Like any other workplace hazard, the risks posed by COVID-19 need consideration, starting with a risk assessment.  Employers must discuss the risk assessment with employees so that they understand the risks and controls put in place. The risk assessment must identify the primary health risks and extend to managing and mitigating any safety risks created by arrangements put in place. Business continuity and resilience plans will be key. They will identify safety critical roles and safe manning levels but the nature of the response required to deal with any potential outbreak offshore throws up a unique set of circumstances, some of which may be challenging and not yet tested.

Employers could be liable if they knowingly allow someone to expose other employees or others, such as contractors, to the risks of COVID-19 in the course of their work activities. Accordingly, common mitigation measures implemented (some with a huge impact for the offshore industry) have been restrictions on travel and implementation of systems and processes of self-declaration and self-isolation. Duty holders are relying on individuals declaring symptoms or making an informed decision to self-isolate with the primary goal of preventing the virus reaching offshore.  For the measures to be effective, employees must play their part. Employees also have individual duties under the Health and Safety at Work Act 1974 to take reasonable care for their own health and safety and that of the people they work with.  They must cooperate with their employers to allow them to comply with their duties under health and safety legislation. For COVID-19 that means following any guidance issued, including taking action to self-isolate where appropriate or declare symptoms even where it means there is a risk of losing work and not being paid. Although we recognise it would be extreme and probably unlikely that the Health and Safety Executive or the Offshore Safety Directive Regulator would seek to take enforcement action against an individual, failure of the individual’s duties is a criminal offence. Disciplinary proceedings are a more likely scenario for any employee who refuses to cooperate or if they recklessly risk their own health or others.

What about pay?

In circumstances in which an employee is unable to mobilise offshore – either because they have contracted the virus or are required to self-isolate – one matter which will require to be considered is their entitlement to pay.

The government has recently announced the decision to make statutory sick pay more readily available to those impacted by COVID-19; however, for most employed in the industry, their employers will operate a company sick pay scheme which provides greater benefits than SSP. The terms of any such scheme should be reviewed carefully. Employers should identify if there is any discretion to withhold payments under the scheme, which they may look to utilise if, for example, employees decide to travel to a high risk area notwithstanding the guidance. If there is a reference to discretion within the scheme, care should be taken to consider whether that discretion has been overridden by a custom and practice of automatically paying company sick pay as if it were a contractual right.

For policy reasons, and perhaps to avoid employees feeling financial pressure to put themselves and others at risk by attending work when they ought to be self-isolating, employers may elect to make a commitment to paying company sick pay, even where it is discretionary. The affordability of such a commitment would clearly need to be carefully considered and any employer making this commitment may wish to add the caveat that this may be revisited as matters develop.

Whilst the government advice is currently that those who have been in a Category 2 listed area do not need to take any special measures unless they have symptoms, we understand that the general approach being taken in the sector is that those who have been in a listed area (whether Category 1 or Category 2) will not be permitted to travel offshore until they have self-isolated for 14 days.

For those who have been in a Category 2 listed area and do not display symptoms (and so would not need to self-isolate under current government guidance), preventing them from mobilising would be equivalent to a suspension and full pay would therefore most likely require to be paid, unless there are lay-off provisions in the employment contract that could be relied upon. We understand that, in practice, some occupational health providers are now advising that all individuals who have been to Category 1 and Category 2 listed areas must self-isolate for 14 days before mobilising offshore. Where clear medical advice to this effect has been given, this could potentially give scope for employers to treat such employees as being absent on medical grounds and to pay those employees under the employer’s sickness absence rules.

Industry specific issues

Employers are likely to be met with a number of varied challenges over the coming weeks and months. We are already beginning to see challenges which are unique to the sector arising:

• Employees who work offshore in the UK, but who permanently reside in listed countries
• Occupational health advice being more cautious than the government position resulting in more stringent recommendations or policy being adopted
• Restriction on mobilisation offshore, resulting in a reduced work force. Workers may have to do jobs or tasks they are unfamiliar with requiring temporary resourcing or additional training
• Workers willing to work longer to cover, making compliance with the Working Time Regulations and arrangements for managing the risks of fatigue relevant
• The potential need for additional health screening measures before workers go offshore to mitigate the risk of someone at risk or who may have been exposed to the virus, such that they pose a threat, slipping through the net of self declaration getting to the heliport or even offshore, putting others at risk
• Dealing with and managing the implications of having to self-isolate workers offshore: that will be different for each duty holder and each installation and different again for any cases on vessels
• Whether offshore workers be given critical infrastructure priority for testing for the virus

What can you do?

From a practical perspective, it is prudent for all operators to be reviewing manning levels, POB and identifying non-essential personnel and work scopes and ensuring that they have identified safety critical roles/ personnel. The implications of any plans put in place require consideration business wide; including supply chains, with mitigating actions included in business continuity plans to ensure resilience and the ability to continue to operate safely

Regular and consistent communication with employees is thoroughly recommended during this period, covering matters such as when employees will be prevented from mobilising offshore, what to do if an employee is concerned that they may have been exposed to the virus and what pay arrangements will apply where an employee is prevented from working. Employers should also be reviewing the terms of their absence policies and contracts of employment to determine what their obligations are in terms of pay and benefits. It is also worth identifying if there are any temporary lay-off provisions in the contract, which might be helpful in circumstances in which part of the workforce may require to be down-manned for any sustained period.

Industry specific guidance

The UK government has been issuing regular advice to contain the spread of the virus. OGUK is working with the industry in managing and guiding a response including working closely with local affiliates for Health Protection Scotland to produce industry specific guidance. The fluidity of the situation means this may be some way off, however, in the meantime OGUK has established a Pandemic Steering Group who are meeting regularly, working to address the unique issues as they arise and issuing updates to OGUK members.

We will update you when any guidance or industry policy becomes available but we are always here to help. Our health and safety and employment teams are happy to discuss your particular concerns and advise on the steps you need to take. Whether you want us to review risk assessments and emergency plans, comment on the affect on your health and safety responsibilities by contractual arrangements with clients or contractors, or advise on difficult pay issues, we are on hand to help support you with the upcoming challenges and can keep you on the right track.

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