What are the Health and Safety Responsibilities of Employers for COVID-19?
As the Government gears up to bring us out of lockdown, through what is likely to be a phased return to work and education, the issue of social distancing within the workplace is going to be at the forefront for employers and their employees. It is now acknowledged by all that such a return to work will bring with it an increased risk of transmission of the virus. That was, after all, the mischief that lockdown was designed to prevent and we as a population have not in the meantime developed any immunity to the virus. The challenge for all will be to persuade a workforce that has been so repeatedly exhorted to avoid social contact to gather again in the workplace where such contact becomes inevitable, and where those that have not already been infected will put themselves and their families at personal risk. Additionally, employers will require reassurance themselves that they are not at corporate or personal risk of regulatory enforcement, closure or even prosecution if their workers do end up spreading the virus at work, or if they encounter insuperable physical or financial difficulties in adhering to all of the social distancing guidance.
It appears that the HSE will play a central role in relation to all of these matters. On 3rd April a joint statement was issued by the TUC, the CBI and the HSE which confirmed that whilst the HSE would use their statutory powers to enforce governmental guidance on social distancing in the workplace, businesses would not face closure “by misunderstandings about government guidance”. What remains unclear is just how this line will be drawn in practice, and upon what legal basis. After all, this is an unprecedented situation, COVID-19 is not a workplace pathogen or occupational disease, it is virus that is transmitted throughout the community at large. Workers returning to work are at just as much risk of becoming infected through their route to work or from their children’s return to school or nursery. As the HSE recognise in their own guidance on the matter, “social distancing is fundamentally a public health measure”, not the province of workplace safety legislation or the ordinary jurisdiction of its regulators. Not for the first time, the Health and Safety at Work Act 1974 is being stretched well beyond Parliament’s original intention.
That much is clear when one considers for a moment the specific regulations made under its auspices that were intended to cover the spread of disease within the workplace. The Control of Substances Hazardous to Health Regulations 2002 (“COSHH 2002”) include within the definition of substances that are hazardous to health at work, “biological agents”, which include viruses. COSHH 2002 impose a series of obligations upon employers to assess the risks posed by such biological agents and then control them so that any potential exposure within the workforce is reduced to the lowest level reasonably practicable. On the face of it, just what is now being demanded for COVID-19. However, the HSE have already made it clear within the Approved Code of Practice (ACOP) issued to accompany COSHH that the agency is not construing these Regulations as being applicable to a community transmitted virus. At paragraph 18 of that ACOP, the HSE state:
“The general duties of COSHH apply to incidental exposure to, and deliberate work with, biological agents. However, COSHH does not cover a situation where, for example, one employee catches a respiratory infection from another. This is because regulation 2(2) specifies that COSHH only applies in those circumstances where risks of exposure are work related, and not those where they have no direct connection with the work being done.”
Whilst the ACOP is not an aid to construction of the statutory instrument, the HSE have always sought to treat the definition of “work-related” in this context as relating to the work activity, rather than mere attendance at a place of work. There is no precedent for employers being required to take measures to prevent infection amongst their workforce from viruses that are just as capable of being acquired in the community. The Advisory Committee on Dangerous Pathogens, a committee appointed by the Health and Safety Commission, and in consultation with the HSE, stated in its 2003 guide to employers titled “Infection at work: Controlling the risks”:
“Although your employees may well pick up infections from workmates (just as they might from their friends and family outside work) – those infections are not your responsibility under health and safety law. This is because the infection is just as likely to be caught outside the workplace as in it….”
This also appears to accord with the approach the HSE are adopting towards employers’ legal responsibility to report COVID-19, pursuant to the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (“RIDDOR”). The HSE, in that guidance, make it clear that there is such a responsibility, under Regulation 9(b) of RIDDOR, wherever there is “reasonable evidence” that someone diagnosed with COVID-19 was likely exposed because of their work. The example they provide is of a health care professional diagnosed with COVID-19 after treating patients infected with this disease. In other words, where there is occupational exposure due to the work activity being performed. However, that conclusion is reached by implication and it would be more helpful for employers if the HSE stated in no uncertain terms in this guidance where the duty does not arise, i.e. for those diagnoses attributing spread of the virus amongst colleagues whilst at work. Another safety regulator, the Office of Rail and Road (“ORR”) has been clearer in the recent statement it issued on the RIDDOR reporting duties within the rail industry for COVID-19:
“COSHH does not apply where employees are exposed to a disease which is in general circulation and which may happen to be present in the workplace as well…ORR is working on the assumption that, with widespread societal spread, very few cases will need to be reported under RIDDOR.”
The ORR approach is, however, based more on an assessment of the chance of the situation arising at all, presuming it will be rare for a suitably qualified medical practitioner to be able to attribute COVID-19 to occupational exposure, as distinct from exposure within the wider community. This is similar to what the HSE say about RIDDOR and biological agents more generally on their website:
“Minor infections common in the community such as colds, bronchitis or stomach upsets cannot generally be attributed to work-related exposures to biological agents, and so are generally not reportable. However, where there is reasonable evidence of a work-related cause, such as inadvertent contact with the infectious agent during laboratory work, you should make a report.”
Again, this seems to be premised on a belief that no medical practitioner will be able to make such a causal link (on the balance of probabilities) in the first place. However, it must be readily foreseeable, given the virulence of COVID-19, and the way that it is now being tested and diagnosed (in a way quite unlike that for colds, bronchitis and influenza), that clusters of confirmed cases will arise within a single business, irrespective of whatever social distancing measures are in place, and will enable a presumption to be made that exposure has probably occurred within that workplace. The ‘2m rule’ and other social distancing measures are, after all, far from a guarantee against virus spread, particularly within an enclosed environment, as has been shown by recent modelling conducted by the Finnish Meteorological Institute, widely reported in the media, and which demonstrated particle spread from a single cough extending over a distance of tens of metres, in all directions, and within only 2 minutes.
In the USA, the safety regulator, the OSHA, has suggested that where a number of COVID-19 cases are confirmed amongst workers who work closely together, without there being an alternative explanation, then this could indeed qualify as “objective evidence” that one or all of those COVID-19 cases may be “work-related”, thereby requiring notification by the employer. That being so, the HSE should make matters clearer as to what they believe does or does not constitute “reasonable evidence”, and specifically whether the transmission of the virus amongst employees, simply by reason of their attendance and location at work, amounts to “occupational exposure” or not.
Ironically, it appears that the one set of regulations that do appear to apply to the current situation facing employers cover the very control measure that is strikingly absent from current governmental and HSE social distancing guidance: namely PPE. The Personal Protective Equipment Regulations 1992 require employers to “ensure” the provision of PPE to any employee who “may be exposed to a risk to their safety” unless the risk has been adequately controlled by other means which are equally or more effective. This rather begs the question as to how any employer can make such a comparative assessment between the respective efficacy of social distancing and PPE, when there is such a marked lack of scientific and political consensus as to either. The science appears to be evolving on a daily basis. Amazon’s TV adverts promote the belt and braces approach of combining the two, which the HSE may well be anxious to discourage, given the global shortage of PPE and the priority afforded to the supply to those in healthcare. Additionally, not all employers will have Amazon’s resources or capabilities and will, therefore, have to make a choice, in circumstances where there is limited practical guidance at present. The Construction Leadership Council guidance for the construction industry discourages the belt and braces approach, maintaining the traditional position that masks (Respiratory Protective Equipment – RPE) are the last resort:
“Sites should not use RPE for Coronavirus (Covid-19) where the two metre social distancing guidelines are met. Where it is not possible to maintain a two metre distance, each activity should be risk assessed using the hierarchy of controls and against any sector-specific guidance, mindful that masks (RPE) are the last resort in the hierarchy.”
No scientific basis is provided to explain why keeping 2m apart is more effective than wearing a mask (either to limit spread or inhalation of the virus) and many employers and, more likely, employees, will be left unclear as to how to make this difficult choice, particularly in an enclosed workplace. It is of note that members of the construction trade body, Build UK, have queried the Government’s approach and guidance towards the provision of respiratory protection.
So it seems that the only legal basis upon which the HSE could enforce social distancing within the workplace would be the 1974 Act itself and the catch-all duty within section 2 which requires employers to ensure the safety of their employees, so far as reasonably practicable. That duty, unlike the comparable duty for non-employees under section 3, is not confined to the manner in which the business is being conducted. Arguably, therefore, it could cover a situation where an employer requires its staff to attend work but fails to take sufficient measures to mitigate the foreseeable spread of a community acquired virus amongst them whilst they are gathered together. That would, though, seem to be straining the parliamentary intent, given the purpose of the legislation, and what is said in Section 1(3):
“(3) For the purposes of this Part risks arising out of or in connection with the activities of persons at work shall be treated as including risks attributable to the manner of conducting an undertaking, the plant or substances used for the purposes of an undertaking and the condition of premises so used or any part of them.”
It would be difficult to construe that sub-section as including risks attributable to spread of a community-acquired virus amongst the workforce. The suitability of the 1974 Act as a legal foundation for enforcing social distancing is open to question, as is demonstrated by the approach of the Welsh Assembly, which has chosen instead to use public health legislation to do so, by amending the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020/353 to incorporate a requirement to “take all reasonable measures to ensure that a distance of 2 metres is maintained between any persons on the premises…”. No such amendment has been made in England.
There does appear to be a pressing need for clarity as to what legislation is deemed by the UK Government and the HSE to be operative in this national emergency, and whether employers remain obliged to follow all existing legislation (including for PPE) notwithstanding issues concerning resources and prioritisation for frontline healthcare. This will be important as new innovative measures (such as contact tracing and screening apps) are introduced to enable workers or perhaps even pockets of workers to return to work, potentially under ongoing medical surveillance. Whilst the duties upon employers contained within Health and Safety at Work Act 1974 have been widely construed and applied over the years to cover a range of situations which Parliament had probably never anticipated at its inception, its use to tackle what is essentially a community and public health issue seems to be taking it beyond its purpose. There can be no question that these difficult times call for radical and innovative solutions, not technical objections or obstructions. However, if the HSE are to be the agency to police social distancing within the workplace, particularly post lockdown, then greater clarity is necessary as to its powers to do so in order to ensure that such conduct is both proportionate and accountable. The Police and CPS approach to their enforcement of social distancing to date has been the subject of considerable scrutiny and controversy. This is particularly so where any such enforcement will be affecting a business community and its workforce that are already fighting for their economic survival.
By Simon Antrobus KC and John Cooper KC.
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