“Deep Cleaning” liability and the MoH Guidelines

The World Health Organisation (WHO) and our local Ministry of Health and Wellness (MOHW) continue to issue guidance for safety, good health and prevention of the spread and contraction of SARS-CoV-2 more commonly called COVID19. Of special importance is the MOHW’s Guidelines for Environmental Cleaning and Disinfection for Institutions including healthcare and residential facilities (July 2020). In addition to concerns about keeping their businesses afloat in the economic fallout from the global pandemic, employers must think about their duty of care owed to their staff and to visitors, and how that duty takes on added import and urgency with the increased use of cleaning products with varying degrees of toxicity.

The guidelines issued by the MOHW differentiate between environmental cleaning, periodic cleaning, and deep cleaning; and cleaning and sanitising. Whether an employer outsources cleaning or has employees responsible for cleaning surfaces and spaces in office, they are responsible for the general safety and fitness for purpose of the premises.

The ordinary duty of an occupier, that is, a person who has such control of premises that he ought to know his failure to use care could cause injury to his lawful visitors, is stated in section 3 of the Occupiers’ Liability Act 1969. Section 3(2) of the Occupiers’ Liability Act states that the occupier’s common duty is to take care as in all reasonable circumstances to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there. 

Section 3(3) explains that in considering the degree of care to be exercised,  an occupier must be prepared for children to be less careful than adults and an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.

This means that while visitors to an organisation or office space should be reasonably careful – that is, avoid touching their eyes, mouth or nose, keep their masks on, and keep the recommended distance from other persons – visitors and customers can only truly be as careful as they are given leave to. Employers will therefore need to establish or re-visit protocols that keep visitors adequately distanced, that encourage or mandate the (proper) wearing of masks, and that allow visitors to sanitise or otherwise properly clean their hands while on the premises. Employers will also need to take reasonable care to ensure that their premises are regularly and properly cleaned and sanitised. 

In addition to the abovementioned common duty, employers also have the responsibility of providing a safe system of work, an adequate plant and adequate equipment, and a safe work environment for their employees. Fulfilling these responsibilities will, once more, include clean premises, but unlike the common duty explored in section 3 of the Occupiers’ Liability Act, this goes further to mean that an employer may be required to have on hand adequate and appropriate cleaning supplies and equipment, and make appropriate decisions on scheduling workers or directing workers’ physical placement so that a safe environment may be maintained.

The system of work, or how things are done on the premises may need to be altered to ensure that, given the nature of the viral threat to health, workers can stay reasonably safe while working. And employers may need to source additional equipment for certain tasks so that workers will not need to share equipment.

Employers are also expected to have competent staff. This expectation at law, in the context of SARS-CoV-2, may necessitate training, re-training or further instructions for staff responsible for cleaning. This training may include government guidelines on cleaning and sanitising, and instructions on chemical use and proper use of personal protective equipment (PPE).

While the foregoing has likely been considered by most, employers will wish to also take all precautions in ensuring that the staff members called upon to conduct cleaning will have no unmitigated, prolonged or unsafe exposure to harsh chemicals that may cause or exacerbate existing health issues, such as bronchitis or asthma, or may damage the skin. While Lysol and other branded chemical sprays are commonplace, the Ministry of Health and Wellness actually recommends the use of diluted Hypochlorite5.25 (SodiumHypochlorite, Bleach), Ethyl Alcohol (70%) or Isopropyl Alcohol 70% which have minimal respiratory and skin contact risk.

The Ministry of Health and Wellness does not currently require closure of a facility owing to confirmed or suspected exposure to the virus. This is likely because facility closure for so-called “deep cleaning” involves the use of more toxic and noxious chemicals than cleaning when persons are present or will be present within a few hours. Nevertheless, occupiers/employers will need to exercise good judgment and recognise the seriousness of their legal responsibility to their visitors and staff and will need to consider balancing the necessity of appropriate cleaning, the effects that may be experienced if appropriate cleaning does not occur, and the effects that may be suffered by visitors or staff if exposed to noxious fumes from chemicals.