Question #6

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As an organization, do we have a duty of care towards our beneficiaries and other stakeholders (e.g. contractors, visitors) to ensure they are protected from Covid-19? If so, what is the extent of that duty?  For example, is the organization obligated to provide masks, hygiene products to beneficiaries and other stakeholders?  What if we cannot fulfill such obligation?

You have a duty of care towards beneficiaries and other stakeholders to ensure that they are not unreasonably exposed to Covid-19 when they are on your premises. This duty is imposed by the Occupiers Liability Ordinance (Cap. 314), which states that an occupier of a premises owes the duty to take reasonable care to ensure the safety of its visitors using the premises. 

What is “reasonable care”? This will depend on various factors and circumstances, such as the type of visitors, the nature and purpose of the premises and the risk of infection. Industry standards and recommended practices by the Centre for Health Protection are also relevant. 

Currently, reasonable care includes but is not limited to: 

  • temperature taking; 
  • provision of hand sanitizers; 
  • maintaining hygiene and regular disinfection of areas frequently accessed by the public; and 
  • ensuring that visitors on the organization’s premises adhere to social distancing guidelines and wear surgical masks (“PPE”). 

You should check the up-to-date government guidance to inform your decision-making. Ultimately, the key consideration is whether you are capable of operating or rendering services safely and if not, to limit or cease services where necessary. 

In respect of PPE, many businesses and organizations make it a requirement that visitors (including stakeholders/contractors) wear PPE before they are permitted to enter the premises. In circumstances where a visitor arrives without PPE, the cautious approach would be to either provide them with PPE, or, if that is not possible, deny entry. Technically, if you are unable to fulfill certain obligations (for example due to shortages of PPE), there is arguably no liability if you can show that you had reasonably attempted to obtain PPE but were unable to do so. However, this is untested, and the safer course of action is to insist that PPE is worn when visitors are on-site.