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As this is a fast moving topic, please note that this article is current as at 03/04/20. For further information, please contact Danny McShee and Stephanie Power.
The Health and Safety Executive (HSE) is issuing guidance each day aimed at businesses that are doing their best to continue operations despite the obstacles created by the Public Health England Guidance and the guidance issued in the last 48 hours includes social distancing, first aid, fit testing face masks and the regulation of chemicals.
At the time of writing, the most recent and arguably the most controversial advice from the HSE so far relates to the requirement to report COVID-19 cases under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR).
Guidance
In summary, the new guidance states that you must only make a report under RIDDOR 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; or,
- 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.
Whilst in ‘normal’ cases of disease at work this guidance may seem relatively straightforward, it creates ambiguity for businesses in the current climate, given the number of cases (or suspected cases) of COVID-19 being reported. The example used by the HSE of a work-related exposure to coronavirus is a health care professional who is diagnosed with COVID-19 after treating patients with COVID-19. However when the guidance is transposed into a non-healthcare setting (i.e. a business where testing is not routinely taking place) then one has to wonder what exactly is meant by ‘diagnosed’? Does this mean that you have the symptoms, that your GP has said you most probably have it, or that you have been diagnosed formally by a blood test? And, perhaps more of an issue, how are lay persons supposed to be able to properly assess whether there is ‘reasonable evidence that it was caused by exposure at work’ when the individual affected may have been travelling to work on the tube, or have a family member who is infected but without symptoms?
Comment
Further guidance is clearly required to establish exactly what needs to be reported not only for the obvious reason of having clarity, but because of the huge burden this guidance is putting on those organisations that are doing their best to implement safe systems in order to keep key workers at work.
The majority of those who will be impacted by this guidance will be the NHS and other health organisations, or those who are supporting those functions for example those providing cleaning services, deliveries and security services. At a time when those businesses are overworked and understaffed, it appears to us that the time spent trying to interpret this guidance, and undertaking the necessary investigations in order to determine whether a case is reportable, will result in valuable safety resource being redirected from providing the front line with the safety support they need (Personal Protective Equipment, COVID-19 tool box talks, training on new procedures, welfare support).
We have no doubt that the HSE’s aim in developing this advice was to try and assist business to understand what should and should not be reported, but unfortunately in our view it has unintentionally created confusion. The sectors on which this guidance has the biggest impact are sadly those which are doing their best to keep key workers at work. Further strain on those businesses by way of excessive and unclear reporting requirements may sadly ultimately result in an impact on the services they are able to provide.
Healthcare
United Kingdom