To keep pace with the pandemic, the HSE is issuing fresh guidance for businesses who are continuing operations. The most recent relates to the requirement to report COVID-19 cases under RIDDOR. It clarifies that, in certain circumstances, employers do have an obligation to report new cases of COVID-19.
When to report?
The obligation to report is triggered when either:
- an unintended incident at work leads to someone’s possible or actual exposure to COVID-19. This must be reported as a dangerous occurrence; or
- a worker has been diagnosed with COVID-19 and there is reasonable evidence that it was caused by exposure at work. This must be reported as a disease.
The HSE gives the example of a lab worker inadvertently smashing a vial containing coronavirus, leading to the exposure of others. This is undoubtedly intended to target hospitals or laboratories known to be dealing with coronavirus.
The example given by HSE is of a healthcare worker who is diagnosed with COVID-19 after treating coronavirus patients. This category of exposure is potentially far wider and could include care homes, first aiders, or those who have worked in close proximity to colleagues with COVID-19, who themselves later test positive.
It may be obvious is some cases that the virus was caught at work, but not in others. Ask your self – do you have “reasonable evidence” that it was caused by exposure at work?
Challenge for businesses
The guidance poses two key questions in the context of disease:
- What is meant by “diagnosed”?
The guidance may seem straightforward when viewed through the lens of typical dangerous occurrences and occupational disease cases. However, in the current climate it creates ambiguity, as without testing it is impossible to state with any certainty whether someone has COVID-19.
In the absence of further HSE guidance, employers should be wary of reporting a “diagnosis” simply on the basis of symptoms. Other factors to consider could include evidence of an NHS 111 Isolation Note, or even hospitalisation under virus conditions.
- What amounts to “reasonable evidence”?
This presents a challenge for businesses away from frontline care. Are employers equipped to properly assess whether a worker has contracted COVID-19 at work, given the daily potential for other routes of transmission (e.g. commuting, shopping for necessities, or having an asymptomatic family member)? It might be very difficult in some cases to determine if the virus has been caught through exposure at work or not and caution should therefore be exercised before reporting under RIDDOR.
As employers adapt to working within the restrictions of COVID-19, they must not forget their duties under the Health and Safety at Work etc Act 1974: to look after the safety of employees and members of the public affected by their business activities. The risk of employees contracting COVID-19 ought to be assessed and managed just like any other safety risk. The steps taken to manage the risk should be clearly evidenced.
Employers should continue to report other incidents under RIDDOR, as required, but need not report suspected cases of COVID-19 unless they are satisfied that one of the above two requirements are met. If you need any support in interpreting the new guidance, please contact us.
For further guidance on employers’ health and safety obligations re COVID-19, see our latest legal update.
On April 9, 2020