Barriers to Occupational Health and Safety Legal Services During Pandemic

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Arjun Aryal, Ava Shrestha, Yadav Prasad Joshi

Abstract—Objectives: This study aimed to identify the barriers to seeking and accessing legal services related to occupational health and safety during the COVID-19 pandemic. Methods: The study applied qualitative research methods, including in-depth interviews with 12 practicing lawyers in Nepal regarding their experience with hundreds of clients. The data was analysed using a thematic analysis approach. Results: The study identified key themes that characterise workers’ experiences in seeking and accessing occupational health and safety (OHS) legal services, as viewed by legal practitioners. These themes included limited knowledge about OHS legal service provision and procedures; perceived high cost of legal services; delay and uncertainty in furnishing justice; intent to protect one’s job, oneself, and family; authority of lawyers and health workers; the influence of family members, employer and significant others; hiding OHS problems due to potential stigmatisation, penalisation and threat; and pandemic-related lockdown and travel restrictions. Conclusions: The study’s findings underscore the practical challenges faced by workers in seeking and accessing OHS legal services during the pandemic. Despite the legal provisions in the current is with the Nepal Open University, Faculty of Science, Health and Technology, Lalitpur and Department of Public Health, Manmohan Memorial Institute of Health Sciences, Kathmandu, Nepal.

During Pandemic constitution, acts, and rules, the access of marginalised populations like workers to OHS services is challenged. This highlights the need for specific attention and focused interventions to avail of OHS legal services during the pandemic. The importance of targeted actions in this area cannot be overstated. The findings of this study are significant as they would serve to formulate and execute important policy guidelines to materialise the existing legal provisions on OHS, and will also serve as the basis for further studies. Index Terms—Barriers; COVID-19; Legal; Occupational Health And Safety; Pandemic.

INTRODUCTION

Occupational health aims to promote and maintain optimal physical, mental, and social well-being for workers in diverse occupational disciplines [1,2]. Its goal is to prevent health problems that may arise for employees as a result of their working conditions, and to protect them from the health risks associated with various workplace hazards [3]. Additionally, occupational health aims to ensure the placement and retention of workers in positions of responsibility [4]. Occupational health and safety (OHS) has become necessary in today’s context as the working population bears a heavy load of OHS hazards [5]. This has raised serious concerns about occupational safety and health, with the conclusion that maintaining robust, valid, and essential workplace health and safety measures is necessary to secure workers’ psychological and physical health [6]. Statement of Problem and Rationale of Study Annually, an estimated 2.9 million people across the world lose their lives because of accidents and diseases related to work [7]. In addition, more than 160 million and 313 million people globally suffer from work-related diseases and non-fatal accidents, respectively, on a yearly basis [8]. These alarming figures underscore the critical need for effective occupational health and safety measures to minimise such consequences, particularly in the context of the pandemic, where the accessibility of OHS and legal services may be further constrained. Research Questions This study seeks to address the following questions: (i) What are the primary barriers to seeking and accessing OHS legal services during the pandemic, as perceived by lawyers? (ii) How has the COVID-19 pandemic exacerbated these barriers? (iii) What are the implications of these findings for policymakers and legal professionals in the context of the pandemic? Policy Context Occupational health and safety (OHS) is recognised as a crucial aspect of labour rights in Nepal, providing for the physical and environmental health of workers as well as other employment conditions. This is reflected in key legal and policy documents, including the Constitution of Nepal (GoN, 2015), the Labour Act (GoN, 2017) and Labour Regulations (GoN, 2018), among the country’s other acts, regulations, policies, and guidelines [9-11]. This study aims to contribute to the ongoing efforts to improve OHS by identifying and analysing the barriers to seeking and accessing legal services pertaining to OHS, especially in the context of the pandemic. Study Objectives The general objective of this study is to explore the barriers to seeking and accessing OHS legal services in Nepal during the COVID-19 pandemic.

METHODS AND MATERIALS

Study Context

An exploratory qualitative study was conducted in the Kathmandu Valley of Nepal. Participating lawyers were selected on the basis of their practice at the Labour Court, High Court, and Supreme Court, related to constitutional law and labour laws pertaining to OHS issues in the context of the COVID-19 pandemic. This pandemic presented unique challenges to OHS, with factors such as lockdowns, travel restrictions, and the closure of workplaces all affecting the accessibility of OHS legal services and impacting the enforcement of labour laws. This study focused on exploring the experience of lawyers who handled OHS cases during this period, to understand how the pandemic affected OHS-related legal service-seeking and accessibility and the implementation of OHS rights.

Research Design The study used a qualitative cross-sectional design [12]. Qualitative data were drawn from in-depth interviews (IDI) with the lawyers regarding their experience with hundreds of clients.

Sampling Strategy and Rationale Lawyers were purposively selected for the study to capture diverse perspectives on the barriers to seeking and accessing OHS legal services. The selected lawyers practiced at various court levels, including the Labour Court, High Court, and Supreme Court. This selection strategy aimed to gather insights into lawyers’ experiences at various stages of the legal process. Potential Sample Bias and Mitigation While purposive sampling can introduce bias, the selection of lawyers from different court levels helped to mitigate this by capturing a range of experiences. For instance, lawyers practicing at the Labour Court may have more experience with initial claims and navigating the Department of Labour, while those at the High Court and Supreme Court may provide insights into the challenges of appeals and complex legal arguments. By including lawyers from all three levels, the study aimed to present a more comprehensive understanding of the barriers to OHS legal services during the pandemic. Sample Size and Sampling Method Participants were selected using a purposive sampling procedure. In-depth interviews (IDI) were conducted with 12 lawyers, a sufficient sample size for qualitative research to reach data saturation [13-16]. Inclusion and Exclusion Criteria

The study participants included lawyers who (i) were engaged in OHS legal services, (ii) were ≥18 years old, and (iii) provided consent. Exclusion Criteria: People who (i) were not licensed lawyers, (ii) were minors (<18 years old), or (iii) did not provide consent were excluded from the study.

Informed Consent The purpose of the study and information sought from the participants was explained to them, and their informed consent was obtained before they were interviewed. Participants did not receive monetary compensation for their time; however, they were provided with information on OHS services in the area, and the intended use of the collected data was explained. Their privacy was respected, and the interview was conducted in a quiet place. All questionnaires were kept anonymous to protect confidentiality, and names and detailed addresses were not recorded.

Interview Guidelines and Interviews Interviews were conducted in the local language (Nepali) by trained researchers, using in-depth interview guidelines which had been developed in English and translated into Nepali. The translation was reviewed by the researchers as well as by an independent lawyer fluent in English and Nepali. Quality Control The researchers checked each guideline immediately after the interview to ensure accuracy and completion, and the collected information was reviewed and transcribed on the same day.

Study Period The study was conducted between February and September 2022.

Data Analysis The study used a qualitative thematic analysis approach guided by Braun and Clarke [17]. Interview transcripts and field notes were reviewed and analysed at the time of data collection, which helped the researchers to check data saturation and explore the emerging themes of inquiry in further depth. Theme Selection and Validation

The process of theme selection and validation involved several steps to ensure rigour and trustworthiness: (i) Inductive coding: The researchers read the transcripts independently for data immersion and developed an inductive coding scheme. This process was repeated twice at different times to refine the codes and capture the nuances of the data. (ii) Code comparison and finalisation: The two sets of codes were then compared to identify areas of agreement and discrepancy. Any discrepancies were discussed and resolved through careful review of the transcripts and consensus-building. This iterative process led to the development of a final coding list. (iii) Double coding: To further enhance the validity of the coding scheme, approximately 10% of the interviews were double-coded independently. The degree of agreement was then examined, and any disagreements were resolved through discussion and consultation with the research team. (iv) Theme development: The final codes were then analysed and sorted to identify overarching themes and sub-themes. This involved grouping similar codes together and identifying patterns and relationships within the data. (v) Data reduction: Data reduction was conducted based on the study objectives to yield critical themes and sub-themes. This ensured that the analysis focused on the most relevant and significant aspects of the data. Coding Process The coding process involved a systematic and iterative approach: (i) Initial coding: The researchers began by assigning initial codes to segments of the interview transcripts that captured key ideas, concepts, and experiences related to the research questions. (ii) Code refinement: As the researchers progressed through the transcripts, the codes were refined, merged, or split to better reflect the emerging patterns in the data. (iii) Codebook development: A codebook was developed to define each code and provide examples from the transcripts. This ensured consistency in coding and facilitated the double-cod-ing process. (iv) Theme identification: The codes were then grouped into themes and sub-themes based on their shared meanings and relationships.

(v) Theme review: The identified themes were reviewed and revised throughout the analysis process to ensure that they accurately reflected the data and addressed the research questions.

RESULTS

Participant Demographics A total of 12 participants were included in the study, completed the interview, and were included in the analysis. All were lawyers from Kathmandu Valley; eight were male, and four were female. Participants ranged from 29 to 64 years of age and had legal experience of 5 to 35 years. Barriers to Seeking and Accessing OHS Legal Services During the Pandemic sub-themes SN Barrier Theme Barrier Sub-Themes 1 Limited awareness  Lack of knowledge about legal provisions  Unfamiliarity with legal procedures 2 Concerns over job security  Pressure to prioritise job security over OHS  Power imbalances and fear of confrontation  Chances of jeopardising the job over OHS  Prioritising job security for the family over personal well-being 3 Cost of legal services  Financial constraints in pandemic  High cost of legal services  Financial burden on workers 4 Authority and power of service providers

To ensure a broad range of perspectives, our sample included lawyers with diverse expertise and experience; nonetheless, the in-depth interviews revealed a consistent pattern of OHS problems with similar legal contexts and scenarios. This suggests that workers face systematic challenges in seeking or accessing OHS legal services, with most reporting only intermittent and irregular access due to various community and OHS system constraints. We present the following key themes that characterise the challenges faced by workers seeking and accessing OHS legal services services, as perceived by their lawyers: limited awareness about legal provisions and procedures; COVID-19 imposed lockdown; intent to protect oneself and family; influence of partners and significant others; and hiding one’s identity due to potential workplace stigmatisation and threat.

 Prescriptive authority and power of lawyers and health workers  Different messages from lawyers and health workers, leading to confusion  Authority of lawyers and health workers to postpone services 5 Justice system barriers  Court delay in resolving legal cases  Uncertainty of obtaining favourable outcome/justice 6 Influence of others  Influence of family members  Influence of peers  Influence of employer 7 Fear of stigma, penalisation, and threat

 Stigma and discrimination at the workplace due to COVID infection  Hesitation to disclose OHS issues to avoid being penalised by em- ployers  Fear of employer retaliation  Fear of job loss 8 Pandemic-related challenges  Travel restrictions during lockdown

1. Limited awareness about legal provisions and procedures Workers often did not seek OHS legal services due to a limited understanding of their rights and the legal processes involved. This included a lack of or limited awareness about relevant OHS laws, the complexities of navigating the legal system, and the steps required to access these services, particularly during the pandemic.

“As the labour act and rules were recently changed (in 2017 and 2018, respectively), many workers do not have detailed knowledge and understanding of the new legal provisions. This is one major challenge behind workers not seeking legal services related to occupational health and safety…” (IDI-2, Senior Advocate) “… we changed the acts and rules in 2017 and 2018 in line with the constitutional health and labour safety provisions. What is missing is that we could not translate the legal provisions for OHS into awareness-raising programs. So, public literacy on OHS legal provisions is lacking.” (IDI-1, Advocate) 2. Intent to continue employment; protect oneself and family In the opinion of many participants, one of the reasons most workers did not seek legal aid/treatment for OHS services was their desire to safeguard their jobs and protect themselves and their children or dependents. Workers who did not seek OHS legal services cited potential confrontation with their employer, as well as potential job loss and the consequences on their dependents if they raised OHS as a legal issue.

“Many workers do not seek legal services on OHS as employment is their primary concern. They believe that, by exercising their legal right to OHS services, they may draw the attention of their employer and lose their job. For them, retaining their job is more important than anything else such as OHS.” (IDI-4, Senior Advocate) “Workers do not want to deal with OHS problems at their workplace, but do not have feasible ways to seek the appropriate OHS services… As the employer would see those workers who raise health or similar right-related issues as a threat, there is always a risk of being singled out by the employer in some way… Who wants to dare to raise an OHS-related issue at the cost of employment? Perhaps nobody. Not even ourselves…” (IDI-3, Advocate) 3. Perceived high cost of legal services In the opinion of many participants, the reason for not seeking legal aid/treatment for OHS issues was the perceived high cost of legal services. For workers who chose to stay quiet rather than seeking legal aid, the entrenched knowledge that ‘legal services are costly’ often outweighed the perceived risk of OHS problems. Almost all lawyers mentioned that, while most workers are at a high risk of OHS problems, they often do not seek legal services due to the perceived cost.

 Closure of legal and health facilities  Difficulties accessing services remotely

“Some workers have to perform risky jobs for the sake of their employment and livelihood, so they have a high chance of being involved in accidents and injuries. However, the cost of seeking health treatment would be lower than that of legal services. Also, ensuring OHS services through legal aid would be too costly and time-consuming…” (IDI-5, Senior Advocate) “…Courts would not be an option for many to obtain OHS provision in a practical sense, as such provision would mostly involve hospital treatment. They would have to invest a lot and wait a long time to ensure OHS through legal services, which is expensive

. They would not waste money filing a case, but would rather save their money and their livelihood…” (IDI-6, Advocate) 4. Authority and power of lawyers and health workers The results of our interviews reveal an element of uncertainty regarding the comparative pros and cons of fighting a case in court versus facing OHS problems at the workplace, due to different, sometimes conflicting, messages provided by lawyers and health workers. This has caused increased dissonance with regard to the authority of lawyers and health workers over legal and health service-seeking choices, as well as the legal aid mechanism and referrals to OHS services through health facilities.

“…the transport ban during the lockdown made it hard for workers to go for legal and health services. Even lawyers and health workers would ignore them (the workers), and they (lawyers and health workers) would have the capacity to ask them (the workers) to visit again at a prescribed time if they needed the services…” (IDI-7, Advocate) “Sometimes the lawyers, health workers, or clients (the workers) would also contract coronavirus. In any of these cases, the lawyers or the health workers would have the power to postpone the services until the next appointment because of the fear of coronavirus transmission…” (IDI-8, Advocate) 5. Delay and uncertainty of obtaining justice Other reported challenges when attempting to ensure OHS through legal means included a long wait to resolve the legal case, and uncertainty over obtaining justice even after such waiting time. The lawyers concurred that the delays and uncertainty were sometimes due to the court, sometimes to the lawyers, and sometimes to the client or their opponent party.

“You can see labour cases pending for years in courts. Delays in hearing and delays in issuing the final order are the key challenges in our justice system… Sometimes, lawyers and judges are not aware of technical aspects of OHS, which makes justice uncertain…” (IDI-9, Advocate) “Sometimes the lawyers of different parties request to postpone the case hearing, while sometimes cases are postponed due to the prolonged hearing of previous cases. Also, sometimes the evidence is not timeously furnished for various reasons, which delays justice and makes it uncertain…” (IDI-10, Advocate) 6. Influence of family members, employers, and significant others Family members, employers, and peers seemed to have the most significant influence over workers’ decisions to stay quiet rather than seek legal services. In developing countries, especially with regard to legal decision-making, the relationship between workers and their families is often based on power and hierarchy, and our study revealed that family members significantly affected workers’ decisions to approach providers of OHS legal services. Some lawyers reported that workers were ‘obliged to’ choose a particular option because of their family members, employers, or peers.

“Workers, especially factory workers, frequently face accidents, become injured, and need legal aid. However, their family members or peers ask them not to confront the employer, for fear of losing the job…” (IDI-11, Advocate) “Many workers would not even talk to their supervisors regarding the legal aid for OHS, as the supervisor might be closer to the employer. If they did, the supervisors would discourage them from seeking legal services…” (IDI-12, Advocate) “Many workers’ family members and peers would prohibit them from seeking legal services for OHS issues. Whatever happens, it would be an issue for the employer and employees. Employers usually have higher power and recognition than employees. The family members or peers advise them not to risk fighting a legal case with the employer…” (IDI-2, Senior Advocate) 7. Fear of stigma, penalisation, and threat Being employed greatly affected workers’ communication with friends and colleagues regarding their OHS status, mainly due to fear of being stigmatised or even penalised. Most employees would disclose their OHS issues to someone, such as their peers in the same occupation, or, in some cases, to family members. Many workers were likely to work despite poor OHS provisions, in order to earn money. Those workers who concealed their OHS issues did so mostly due to the fear of workplace stigma, potential penalisation, and threat associated with speaking out.

“Employees get jobs against tough competition and with great effort... The COVID19 lockdown gave them a harder time, as families were forced to be confined together and depended on the earnings of limited employees. Their family would question them if they risked being penalised by raising OHS issues… Obviously, their family members would not believe that OHS takes priority over job security…” (IDI-6, Advocate) “Workers who chose not to seek OHS legal services did so out of fear of potential repercussions, such as workplace violence directed at themselves, or threats directed at their dependents, due to conflicts arising from the lack of expected OHS provisions at the workplace. This fear of exacerbating a situation was cited as a significant factor influencing their decision to forgo legal services…” (IDI-9, Advocate) 8. Lockdown-imposed challenges to travel and access services

As reported by the participants, another reason workers did not seek OHS services was the difficulty of leaving their home and finding transport to legal and health facilities during the government-imposed lockdown. A special ‘travel pass’ was required to travel during this time. In addition, legal and health facilities remained closed for several months, preventing access to their services. Participants also expressed that workers would have been interrogated in detail by everyone had they tried to leave their homes and travel to legal/health facilities for OHS services during that time.

“We learned informally that many workers were injured following accidents during the lockdown. During COVID-19, all hospitals were closed, so they could not go for a check-up. It has been a long time since COVID-19, when they did not have sufficient access to legal/health services…” (IDI-12, Advocate) To protect themselves, the workers had been seeking these (legal) services through local service providers..., but with COVID19 and the lockdown, they could not access any legal services related to their workplace health. Many workers could not waste money, almost Rs.2000 per person, to take the COVID test, but wanted to save themselves and their jobs. Many law firms and health facilities were closed because they feared the coronavirus...” (IDI-3, Advocate)

DISCUSSION

This study explored the experience of lawyers with regard to the barriers to OHS legal services in Nepal, in the context of COVID-19. We discuss below the significant gaps and challenges cited by our respondents with regard to seeking and accessing these services. Limited knowledge of legal provisions was one barrier to seeking OHS legal services. Likewise, limited knowledge about services, limited information as to what to do, and limited expertise about how and where to access services were also reported in other countries as barriers to seeking and accessing healthcare services during the COVID-19 pandemic [18-22]. Potential confrontation with employers when raising legal issues, and a desire to safeguard their jobs and protect themselves and their dependents, also prevented employees from seeking legal services. Confronting structural issues [23-24] and personal or collective protection issues have also affected service-seeking in other contexts [6,25]. The perceived high cost of legal services was another barrier hindering workers from seeking such services. This finding was compatible with those of other studies, in which high costs of services and financial costs to the employee were significant barriers to accessing services [26-29].

Differences in information given and referral points suggested by lawyers and health workers with regard to OHS services led to confusion for workers as to whether to approach health facilities or the court to ensure OHS services at the workplace. Elsewhere, different information received from different sources was also reported as likely to create confusion and affect the governance of, delivery of, and access to OHS services [30-32]. Potential delays in resolving legal cases and uncertainty over obtaining an order in their favour were further challenges faced by workers considering OHS legal services. Procrastination or slow service delivery and long waiting times have often been strongly associated with poor access of clients to health services during the COVID-19 pandemic [3336].

Advice from reference people such as family members, seniors, and friends played a critical role in workers’ decisions over whether to seek OHS legal services. This finding aligns with those of other studies that found family, friends, and social support have a huge role in deciding whether, where, and how to seek services [37-39]. Our study found that many workers did not seek OHS legal services due to the fear and perceived threat of stigmatisation or even penalisation by the employer. Other studies have also reported that stigma, discrimination, threats, and penalisation for absence from the workplace deter workers from seeking OHS services [6,26,40,41].

Finally, another reported challenge was leaving home and travelling to legal and health facilities during the government-imposed COVID-19 lockdown. Other researchers across the globe have frequently reported that COVID-19 and the associated lockdown hindered access to healthcare and legal services [42-44]. The findings of this study have significant implications for improving OHS during the pandemic, both in Nepal and globally. By highlighting the barriers to seeking and accessing OHS legal services, we emphasise the need for comprehensive policy interventions to strengthen legal service access and ensure the health, safety, and well-being of workers in the face of occupational hazards and public health challenges [45]. The findings contribute to global OHS legal discussions by providing insights into the common challenges faced by workers who choose to seek legal support for OHS concerns, which can inform policy and practice improvements in diverse contexts [46].

3 Cost of legal services  Expand legal aid programs  Offer alternative dispute resolution mechanisms  Subsidise legal services 4 Authority and power of service providers

 Develop clear guidelines and protocols  Establish and strengthen a centralised referral system  Implement training programs for service providers 5 Justice system barriers  Streamline legal processes  Establish specialised labor courts  Implement case management systems 6 Influence of others  Launch awareness campaigns for influencers  Develop open communication policies  Establish support groups or peer networks 7 Fear of stigma, penalisation, and threat

 Strengthen anti-discrimination policies  Implement confidential reporting mechanisms  Conduct workplace inspections and audits 8 Pandemic-related challenges  Utilise telehealth platforms and digital technologies  Establish alternative service delivery models  Develop contingency plans for public health emergencies

This study provides valuable insights into the barriers to seeking and accessing OHS legal services during the pandemic, but it is essential to acknowledge its limitations. First, the study relied on the perspectives of lawyers, which may not fully capture the lived experiences and challenges faced by workers themselves. Second, the qualitative nature of the study limits the generalisability of the findings to a broader population [47,48]. Finally, the small sample size of lawyers involved in the study may not be sufficient to capture the full range of perspectives and experiences related to seeking and accessing OHS legal services, from a quantitative viewpoint. To address the limitations of this study, future research could directly involve workers to understand their first-hand experiences and challenges in seeking and accessing OHS legal services. This could involve interviews, focus groups, or surveys with workers from diverse sectors and backgrounds. Additionally, a larger and more representative study could be conducted to estimate the prevalence of barriers to seeking or accessing these services, as well as the associated factors and determinants. Combining qualitative and quantitative methods could provide a more comprehensive understanding of these barriers [49]. Longitudinal studies could track workers’ experiences over time to understand how OHS legal service-seeking evolves, and the long-term impacts of these services on workers’ health and well-being [50]. Comparing the experiences of workers in different regions of Nepal or across different industries could shed light on the specific challenges faced by various worker populations. Finally, intervention research could explore and evaluate interventions designed to improve the process of seeking and accessing OHS legal services, such as legal aid programs, educational campaigns, and policy changes.

CONCLUSION

This study explored the barriers to seeking and accessing legal services related to occupational health and safety (OHS) in Nepal, as perceived by lawyers, during the COVID-19 pandemic. The findings highlight critical challenges faced by workers who choose to seek legal support for OHS concerns, including limited awareness of legal provisions, perceived high costs, fear of stigma and job loss, influence of family and employers, and difficulties imposed by pandemic-related restrictions. These challenges underscore the need for comprehensive policy interventions to strengthen access to OHS legal services in Nepal and other countries with similar resource constraints. Based on our findings, several policy recommendations can be proposed. First, governments should prioritise educational campaigns to raise awareness among workers about their OHS rights and the legal resources available to them. Second, financial support mechanisms, such as legal aid programs or subsidised legal services, should be established to address the cost barriers faced by workers. Third, policies should be implemented to protect workers from stigma and job loss when they seek legal redress for OHS concerns. Fourth, legal professionals, including lawyers and judges, should receive specialised training in OHS laws and regulations to ensure effective representation and adjudication of OHS cases. Fifth, digital technologies and telehealth platforms could be leveraged to facilitate remote access to legal services, particularly in pandemic contexts or geographically isolated regions. These policy interventions should be considered not only in the context of the COVID-19 pandemic, but also any public health crisis that may disrupt access to OHS legal services. By addressing the identified barriers and implementing these recommendations, policymakers can create a more supportive legal environment for workers, ensuring their health, safety, and well-being in the face of occupational hazards and public health challenges. CONFLICT OF INTEREST None. ACKNOWLEDGEMENTS We would like to acknowledge all of the lawyers who participated in the interviews and shared their perspectives. We also thank Kat Kamstra, English language editor at JMLPH, for her valuable feedback and assistance throughout the review process, which significantly improved the clarity and quality of this manuscript. FUNDING None.

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