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IPCC report a wake-up call for employers yet to take action on climate change
12/08/2021
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California wildfire 2020
Authors
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John VDLD
John van der Luit-Drummond is editor of International Employment Lawyer

Global temperatures are expected to reach or exceed 1.5°C of warming over the next two decades unless there is a sustained reduction in greenhouse gas emissions, a landmark report warns amid the rapid and intensifying effects of climate change, which continues to raise various challenges for employers worldwide.

Described as a “reality check” by its authors, the report from the UN’s Intergovernmental Panel on Climate Change (IPCC) projects that in the coming decades climate changes will increase across the globe. For 1.5°C of global warming, there will be increasing heat waves, longer warm seasons, and shorter cold seasons. At 2°C of global warming, heat extremes would more often reach critical tolerance thresholds for agriculture and health, according to IPCC experts.

However, the report warns that climate change is not just about rising global temperatures. More intense rainfall and associated flooding in urban areas, “irreversible” rising sea levels caused by melting of glaciers, more frequent and severe coastal erosion, and more intense droughts in many regions are among the predicted impacts of climate change, putting some nations at the “edge of extinction”.

The report comes at a time of increasingly devastating extreme weather events around the globe and linked to the climate crisis. In recent weeks, intense storms slammed Belgium and Germany leaving more than 200 people dead as rivers burst their banks, triggering massive landslides. A few days later, the UK Met Office issued its first-ever extreme heat weather warning. Meanwhile, catastrophic wildfires have continued to ravage parts of Italy and Greece, as well as in Turkey, Russia, Canada, and the US, where firefighters in California are battling the Dixie Fire, one of the largest and most destructive wildfires in the state’s history.

Across the Atlantic, the effects of extreme weather conditions are having a direct impact on workplace health and safety, with the US Department of Labor urging employers and workers to take proper safety precautions when working in hot weather during the summer months. Heat killed 815 US workers between 1992 and 2017 and seriously injured 70,000 more, according to federal records. But despite June’s West coast heatwave being responsible for more than 80 deaths – three of them workers – the Occupational Safety and Health Administration has so far ignored recommendations from the Centers for Disease Control and Prevention to regulate workplace temperature levels, as reported by Politico.

Being “reasonable” in the summer heat
In July, the UK Met Office issued an amber warning due to extreme heat as forecasters warned temperatures could reach 33°C in some parts of Wales, all of south-west England, and parts of southern and central England.
UK law does not provide for minimum or maximum working temperatures. However, during working hours the temperature in all indoor workplaces must be “reasonable”, with guidance suggesting a minimum of 16°C, or 13°C if employees are doing physical work.
The TUC has urged employers to ensure staff are protected from the sun and heat, to avoid dehydration, tiredness, muscle cramps, rashes, fainting, and – in the most extreme cases – loss of consciousness. Employers were advised by the union body to:  
- allow flexible working – giving workers the chance to start earlier or stay later, thereby enabling them to avoid unpleasant conditions on the rush-hour commute – or consider enabling staff to work from home while it is hot;
- keep workplace buildings cool. Workplaces can be kept cooler and more bearable by taking simple steps such as opening windows, using fans, moving staff away from windows or sources of heat, or installing ventilation or air-cooling; 
- temporarily relaxing their workplace dress codes. Encouraging staff to work in more casual clothing than normal – leaving jackets and ties at home – will help them keep cool;
- keep staff comfortable through frequent breaks and supplying cold drinks; and
- outside tasks should be scheduled for early morning and late afternoon, not between 11am and 3pm when temperatures are highest, and provide canopies, shades and sun protection for those working outdoors, where possible. 

The West is not alone when it comes to grappling with the latest symptoms of climate change. Although much of China’s central Henan province was devastated by record rains last month, the new IPCC report warns of even more serious consequences for the Asia-Pacific region. The Indian monsoon season is predicted to strengthen over South Asia, for example, while rising sea levels should be feared in a region that has more people living in low-lying coastal cities than all other cities in the world combined, according to a recent report from McKinsey.

“The Asia-Pacific region comprises a wide variety of developmentally diverse countries and economies with differing climate change mitigation strategies. So our clients with workers throughout the region have been forced to think about how to manage their duty of care to employees in vastly different jurisdictions during extreme weather events,” explains Herbert Smith Freehills’ Tess Lumsdaine, who warns that employers face a greater risk of liability, even under existing legal duties, as the likelihood of extreme weather events grows.

“In most jurisdictions in the region, employers have a general duty to provide employees with a safe workplace, wherever that workplace may be,” says the Hong Kong-based senior employment law consultant. “Employers will need to look at risks emerging from climate change and ensure their current safety-governance framework keeps apace of these diverse, evolving risks.”

Regulators in Singapore and Australia, for example, have issued guidance on heat stress, with employers facing penalties if workers are injured or fall ill. Meanwhile, in Hong Kong, employers are already liable for compensation if an employee is injured or dies while commuting to work within four hours of a severe typhoon warning or certain warning levels indicating heavy rain. This year, Hong Kong’s employee compensation coverage has been widened to include employee injury or death while commuting in “extreme conditions” arising from a super typhoon or other natural disasters of a substantial scale.

“As extreme weather events – such as flooding, extreme haze, or air pollution from fires or dust storms – impact more cities, even employers with a predominantly office-bound workforce have considered policies that prescribe remote work or cancellation of work during extreme weather events,” says Lumsdaine.

Lumsdaine points to Australia’s bushfires in 2019 and 2020, which led to the Australian Council of Trade Unions calling for changes to health and safety regulations and many Sydney-based businesses were forced to make alternative working arrangements for staff affected by the bushfire smoke. Employers across Indonesia, Malaysia, and Singapore faced similar concerns in 2015 when smoke from huge forest fires created a cloud of smog over the region, forcing schools to close; Singapore even considered a national shutdown of workplaces.

But in addition to extreme weather and rising sea levels, there are other less obvious dangers from climate change. “A warming climate brings an increased threat of mosquito and water-borne disease, as rising temperatures expand the area in which conditions for those infections are ripe,” explains Lumsdaine, citing recent WHO warnings that raise an interesting parallel with the current debate over mandatory covid-19 vaccinations. “Employers might consider whether immunisation against emerging diseases is a condition of employment or an inherent requirement of the role.”

How employers can prepare for when disaster strikes
Each employer should review their potential risks and plans periodically, explains Herbert Smith Freehills’ Tess Lumsdaine. This may include:
- remote working arrangements, including those for work outside an employee's normal home jurisdiction. Cross-border remote working has specific challenges around visas, taxes, professional regulation, and compliance with foreign laws;
- availability of and provision to employees of personal protective equipment. This could include masks to protect against air pollution and cooling devices in hot weather;
- split-shift arrangements to reduce exposure to extreme weather;
- split-team arrangements to manage operational disruptions; and
- tailored measures for vulnerable employees during extreme weather, such as those with medical conditions, older workers and pregnant workers.

And yet, despite all the dire warnings and “unequivocal” scientific consensus that rising global temperatures are a real and present threat, climate crisis scepticism persists. So what advice should employers follow if elements of their workforce believe climate change to be fake news, a hoax, and refuse to follow company safety guidance ostensibly put in place to protect them and their colleagues from harm?

“In most Asia-Pacific jurisdictions, employees will also have a duty to take care of their own health and safety and that of the people they work with,” remarks Lumsdaine. “Where procedures are aimed at worker health and safety, it will generally be a lawful and reasonable requirement that employees comply with these requirements. And if they don’t comply, they can be disciplined, which may include dismissal.”

Conversely, what of employees who have strongly held beliefs on the impacts of climate change and want their employer to be part of the solution, rather than the problem? What if the actions of climate-conscious employees cross a line their employer deems unacceptable, as Amazon did when it threatened to dismiss employees who spoke out on environmental issues.

In the UK, for example, the landmark decision in Grainger v Nicholson states that a belief in climate change is a protected philosophical belief under the Equality Act 2010. So, with the IPCC report providing a much clearer picture of our future climate, can we expect to see an increase in employee activism and subsequent discrimination claims?

“While climate change is high on the international agenda, it isn’t generally a key battleground between employers and employees,” says Raoul Parekh, a partner at GQ|Littler in London. “This is so even though the leading UK case on protected philosophical beliefs concerned an employee’s belief that ‘we must urgently cut carbon emissions to avoid catastrophic climate change’ and his allegations that he was dismissed for that reason. Although the belief was found to be protected, we simply haven’t seen a significant number of claims in this area.”

Even if businesses do not face a tide of climate strikes by workers, a failure to prioritise environmental issues may see less socially responsible employers lose out in the war for talent. Polling from 2019 found that 80% of UK workers believe their employer has a responsibility to take action on the environment. Six in 10 workers actively investigate a potential employer’s environmental impact as part of their job application process, with 18% stating they would refuse to work for a company they considered to be harmful to the environment.

Perhaps even more worrying for UK employers was the finding that more than one-quarter of workers (26%) would move to a more environmentally conscious organisation, even if it involved taking a salary cut. An additional 28% said they would consider quitting their job to work with for an organisation considered to be more environmentally friendly than their current employer, a figure that jumps to 50% when applied to millennial workers.

“It has never been more important for businesses to be part of the solution to our planetary crises,” said Business in the Community’s Gudrun Cartwright in 2019. “Young people are no longer begging leaders to change but telling them that change is coming regardless. Businesses that ignore it face an imminent existential threat. For those that get ahead of the curve, turning talk into action at speed and scale, the opportunities are immense. Our futures depend on rapid, ambitious action, and we can all make a difference.”