Effective health and safety management has always involved a process of identifying risks and putting in place measures or mitigations to protect the safety of workers. COVID-19 is no different in this respect; all businesses, small or large, have to do what they reasonably can to control the spread of the virus. The challenge is that not only is it invisible, but the exact mechanisms behind how it spreads also are not entirely clear. This raises the key question for businesses who are looking to re-establish their operations; are we doing enough to protect workers, and are we at risk of inadvertently breaching health and safety law?

Are businesses at risk of breaching H&S law due to COVID-19?

All businesses are obliged to conform with the Health and Safety at Work etc. Act 1974 (HSWA) which states, ‘it shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees’. In practical terms, this means that equipment, systems, information, training, supervision, and instruction must be put in place so far as is reasonably practicable, to protect the health and safety at work of employees. It is, however, highly unlikely that HASW will be readily enforced where COVID-19 has spread within a workplace, especially given that PPE, handwashing, screening, and social distancing measures are no guarantee that the virus will not spread.

Businesses also have a legal obligation to report significant health and safety events to the Health and Safety Executive (HSE). HSE has issued new COVID-19 specific guidance in relation to the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR), stating that reports must only be made when:

• an unintended incident at work has led to someone’s possible or actual exposure to coronavirus. This must be reported as a dangerous occurrence.
• a worker has been diagnosed as having COVID 19 and there is reasonable evidence that it was caused by exposure at work. This must be reported as a case of disease.
• a worker dies as a result of occupational exposure to coronavirus.

The key words above are ‘reasonable evidence’; how can an employer possibly know if COVID-19 was caused by workplace exposure, and not in another setting? It may only be realistically possible to infer workplace transmission where an employee is in known contact with the virus – e.g. front-line workers treating patients with COVID-19. Therefore, in the absence of a causal link for a diagnosis of COVID-19, as will be the case in most workplaces outside of healthcare, most businesses should not find themselves in breach of their reporting obligations to HSE.

How should businesses approach COVID-19 health and safety?

There is much that can be done to protect workers from the COVID-19 virus; extensive guidance has been published by the HSE, which recommends:

• Identifying work activity or situations which might cause transmission of the virus, considering who could be at risk, deciding how likely it is that someone could be exposed, acting to remove the activity or situation, or if this isn’t possible, controlling the risk
• Following sector-specific guidance
• Reviewing where employees are located to reduce risk – including providing equipment (e.g. laptops) to facilitate home working
• Reviewing how employees work together
• Putting in place social distancing and hygiene measures in line with government guidance
• Considering how the risk of exposure to COVID-19 can be reduced when commuting to and from work
• Communicating with employees on how they can protect themselves
• Designing work areas to mitigate risks, including using tape and signage to ensure two-metre distancing, reducing the number of staff in each area, cleaning of items touched and used by workers, overall workplace cleaning, and implementing protective screens
• Controlling the movement of workers in the workplace (e.g. one-way movement and reducing the number of people allowed in lifts).
• Controlling the use of common areas.
• Ensuring good hygiene at all times
• The use of personal protective equipment (PPE)
• The provision of information and guidance on health and safety

While COVID-19 poses a considerable health and safety challenge, every effort should be made to mitigate the impact on those workers who are most vulnerable. It is now clearly established that some individuals are proportionally more at risk from COVID-19, including, according to the NHS, those who:

• have had an organ transplant
• are having chemotherapy or antibody treatment for cancer, including immunotherapy
• are having an intense course of radiotherapy (radical radiotherapy) for lung cancer
• are having targeted cancer treatments that can affect the immune system (such as protein kinase inhibitors or PARP inhibitors)
• have blood or bone marrow cancer (such as leukaemia, lymphoma or myeloma)
• have had a bone marrow or stem cell transplant in the past six months, or are still taking an immunosuppressant medicine
• have been told by a doctor they have a severe lung condition (such as cystic fibrosis, severe asthma or severe COPD)
• have a condition that means they have a very high risk of getting infections (such as SCID or sickle cell)
• are taking medicine that makes them much more likely to get infections (such as high doses of steroids)
• have a serious heart condition and are pregnant

It might be that those with the highest risk within your business will have to work at home, or where this is not possible due to the nature of the role, they should be offered jobs for which you can better prevent their risk of exposure to COVID-19.

It is highly advisable to review the official government guidance on a daily basis to determine any new rules or changes in law which may relate to your business. And as a matter of standard practice, ensure that robust records (including clear contemporaneous notes) are kept in relation to your regular health and safety risk assessments. While these may never be needed, they will prove essential if your business is accused of a health and safety breach in the future.

In conclusion

All businesses have a duty to protect the health and safety of their workers. While it is unlikely that enforcement action by the HSE will be taken due to the spread of the virus in the workplace, every effort should be taken to protect staff, customers, and anyone else in contact with your business. Doing so will engender trust within your organisation, meaning that workers will continue to come to work in the knowledge that you are doing all you can to protect your team. Ultimately this is an unprecedented situation for modern day workplaces and businesses will be judged on how they step up to the health and safety mark.

Tanveer Qureshi specialises in health and safety, food hygiene, and environmental law. If you require legal representation, please contact Tanveer directly at tqureshi@4-5.co.uk or via his chambers, 4-5 Gray’s Inn Square. For more about Tanveer or to subscribe to his newsletters, please go to www.tqlegal.co.uk.