28 April 2020
The coronavirus pandemic and the counter-measures employed to reduce its impact are leading to a steady stream of revised health and safety law and guidance. The first week of April alone brought a number of developments.
Updated Coronavirus RIDDOR guidance
The Health and Safety Executive has updated its guidance in relation to when occurrences of coronavirus are reportable by employers under RIDDOR.
The guidance now suggests that incidents should be reported when:
- an unintended incident work leads to someone’s possible or actual exposure to coronavirus; or
- the diagnosis of an employee with COVID-19 where there is reasonable evidence that this was caused by an exposure at work; or
- a worker dies as a result of occupational exposure to coronavirus.
An unintended work incident would be reportable as a dangerous occurrence and the diagnosis or death as cases of disease.
Clearly, questions are bound to arise as to how, in the current circumstances, an employer can know whether an incident in work is likely to have caused an employee to be exposed to coronavirus.
Diagnosis with COVID-19 will in itself be difficult to establish currently, in the absence of widespread testing. Where there is a diagnosis, there will often be significant room for doubt about whether an employee developed the disease following exposure to coronavirus at work, rather than anywhere else.
The guidance will, therefore, have to be applied with a significant degree of common sense. Where a decision is taken not to report, the justification for that should be clearly recorded.
Updated Welsh Government Guidance on physical distancing
The Welsh Government has updated its guidance in relation to the maintenance of physical distancing in the workplace. This guidance governs the interpretation of the requirements of the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020. The regulations and guidance both repay careful reading.
Put very shortly, employers are under a legal duty to take reasonable steps to ensure that their employees remain at least 2m from one another when in work (except when travelling in a vehicle). Clearly, there will be cases in which workers do come into closer proximity. The duty on employers is to take reasonable steps to allow the distance to be maintained in most situations. Efforts should be made to assess whether working practices need to change and to document what reasonable measures have been applied.
Relaxation of CE marking requirements for PPE
The EU law in relation to CE marking for certain products including personal protective equipment remains in place during the Brexit transition period, and will be succeeded by very similar requirements for “UK” marks.
Given the urgent need to ensure that adequate quantities of PPE are provided to those in frontline services, in late March, the European Union issued a recommendation for the relaxation of requirements for CE marking for PPE specifically.
That recommendation has since been reflected within UK guidance. It is not now necessary to obtain a conformity assessment where PPE is purchased by the government or NHS for use by healthcare workers. PPE can otherwise be put on the market without CE marking so long as a conformity assessment is carried out as soon as possible afterwards.
It is important to note that this relaxation does not remove the need for PPE manufacturers to ensure that their products meet the “essential health and safety requirements” set out under EU law.
20 March 2020
Employers are strongly advised to undertake a risk assessment to identify the risks posed by COVID-19 Coronavirus.
Initial measures to manage the identified COVID-19 risks
The results of the assessment will assist in formulating the employer’s approach to managing the risks identified, and, importantly, inform the proportionate measures that will need to be implemented to manage the risks identified. The employer’s response will, of course, vary according to the nature of its undertaking, but some measures can sensibly be implemented regardless of the sector in which the employer operates. These measures include (but aren’t necessarily limited to):
- Daily monitoring of any COVID-19 guidance issued by HM Government (including the Health and Safety Executive, and any sector-specific professional, representative or regulatory body);
- Making staff aware of the symptoms of COVID-19, and ensuring that any guidance issued by HM Government is brought to their attention;
Having a clear reporting procedure (that is communicated effectively to staff) for those presenting with symptoms of COVID-19, or who have been in contact with someone that is presenting with symptoms (including introducing a procedure for those recently returning from identified high-risk areas);
- Providing (and keeping replenished) handwashing facilities, and any particular personal protective equipment (PPE) as may be necessary either in the course of the employee’s usual duties or as may be additionally necessary in light of any particular risks identified in the risk assessment;
- Liaising with any building maintenance services, facilities departments, cleaning contractors, etc in relation to measures to be applied in cleaning communal areas of buildings; and
- Ensuring that, where staff members are required to visit third-party sites as part of their employment, those third parties have adequate preventative and protective procedures in place.
Employers should take particular care to keep their procedures under continual review, and ensure that they reflect, or take account of, the latest HM Government advice. Additionally, records should be kept of the particular measures implemented, including any measures considered but not implemented, along with the reasoning behind that particular decision.
Restrictions on employees’ travel
Most employers are taking steps to reduce all but essential national and international business travel for employees. However, where international travel is required for business reasons, employers should follow the official Foreign and Commonwealth Office’s guidance for the country to which employees will be travelling. Regard should also be had to any official government guidance in the destination country or countries (and any country or countries through which employees will transit). Before the travel begins, employers should liaise with their insurers to confirm that adequate insurance cover is in place, and will remain in place for the duration of the trip in question. Employers should continue to monitor government guidance for the duration of the trip.
Keep up-to-date with official guidance
The global position on COVID-19 Coronavirus is changing regularly (often on a daily basis). As such, employers should keep up to date with any changes in official guidance, and ensure that any such changes are reflected in their protective and preventative measures. It is strongly recommended that, whilst the landscape around COVID-19 is fast-changing, employers should review their risk assessment and preventative and protective measures daily.
The Health and Safety Legislation
The Health and Safety at Work, etc. Act 1974 imposes a duty on employers to safeguard, so far as is reasonably practicable, the health and safety of their employees at work, and persons other than their employees who may be affected by the employer’s undertaking.
Additionally, the Management of Health and Safety at Work Regulations 1999 places a duty on employers to make a suitable and sufficient assessment of the risks to the health and safety of their employees at work, and of persons other than their employees arising out of, or in connection with, their undertaking. The Regulations also impose a duty on all employers to put in place appropriate arrangements for the planning, organisation, control, monitoring and review of those measures identified as necessary in the risk assessment.
In addition to any duties imposed by health and safety legislation, employers will also owe common law duties of care towards their employees, and persons other than their employees, who may foreseeably be affected by their undertaking.
It must also be remembered that health and safety legislation places a duty on all employees to take reasonable care of their own health and safety, and that of other persons who may be adversely affected by employees’ acts (or omission) in the workplace.