Navigating health and safety obligations during the coronavirus pandemic

Author: Louis Wustemann

Government measures intended to reduce health risks during the coronavirus pandemic add a new layer of complexity to employers' health and safety responsibilities. Louis Wustemann examines what employers need to do to remain compliant.

In his address to the nation on 10 May 2020, the Prime Minister commenced the easing of lockdown restrictions by stating that anyone who cannot work from home should be actively encouraged to go to work, and this was reiterated in the Government's recovery strategy. The document also states that "sectors of the economy that are allowed to be open should be open". The Government had previously ordered certain businesses to close and introduced various restrictions via the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020/350). These restrictions are overlaid with another layer of complexity: the duty on employers to protect employees and others from risks to their health and safety. Many organisations are still trying to work out how to marry that duty of care with their newer responsibilities and restrictions.

Assessing the risk

Mary Lawrence, a partner at law firm Osborne Clarke, says that businesses that cannot rely entirely on home-based workers, and as such are operating workplaces, must produce a coronavirus risk assessment and communicate the results to employees (showing how they are keeping them safe), display a notice in their workplace and where possible publish the risk assessment results on their website - this is required for larger businesses. Lawrence explains that: "Having identified that you can operate your business by law, the Health and Safety at Work etc Act 1974 kicks in, and your duties under ss.2 and 3 to ensure the safety of people so far as is reasonably practicable apply." She continues: "The recent government guidance reflects requirements under reg.3 of the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242) to identify health and safety risks and carry out a 'suitable and sufficient' assessment of risks which is recorded in writing."

Where specific guidance is lacking or unclear, Lawrence says, employers have to fall back on their general duty under the Act to reduce risk to as low a level as reasonably practicable. This is in line with the non-prescriptive foundation of UK safety law, which leaves the responsibility with the duty holder to assess risks and take adequate steps to control them. The Government has allocated the Health and Safety Executive (HSE) an extra £14 million for 2020/2021 to fund increased staff and inspections.

For employees who are particularly at risk, attending the workplace is not an option. The HSE has warned that it could issue enforcement notices where it finds employers preventing workers in "shielded" groups - such as those with underlying medical conditions or compromised immune systems - from self-isolating.

For those who can come to work, the Management of Health and Safety at Work Regulations 1999 require employers to review the risk assessment for any activity or individual whenever there is a significant change to the work, or the circumstances in which it is carried out. In the case of coronavirus, this means that employers must revisit previous risk assessments and decide whether or not the added risk of transmission between employees or with members of the public means that the activity should be suspended or carried out differently. Another consideration is whether or not any change to the work to reduce the risk of someone contracting coronavirus would make the work more risky in different respects.

Measures to manage the risk

Where employees need to be in the workplace, organisations must allow in only the number who can work without compromising distancing measures or other protections. This may mean staggering start and finish times, arranging rotas or shifts to limit numbers at any time, or "cohorting", where employees work in defined, separated groups to limit the potential spread if one member becomes infected.

The duty in safety law to give workers the information, instruction and training required to carry out their work safely includes measures to prevent the spread of coronavirus. Employers must re-emphasise instructions on social distancing and hand washing, adding any new job-specific or task-specific rules. Workplace signs, especially at pinch points such as entrances, lobbies and lifts, and floor markings where queues are likely to form, should remind employees to keep their distance. Making office circulation routes one-way may help reduce the need for workers to pass each other too closely. Since the risk of coronavirus transmission adds an extra level of hazard to many activities, the duty on employers to provide supervision for hazardous tasks could also be interpreted as a need to appoint people in shared workspaces to monitor and ensure compliance with the new rules.

Workplace cleaning regimes will need to be stepped up, and include regular disinfection for areas such as toilets and lifts, and the supply of hand sanitiser at such points. "You also need to be thinking about how to stop sick people coming into the office," says Lawrence. Employees should be instructed to monitor themselves for symptoms, possibly being asked to check before leaving for work. Staff who have come into contact with anyone who develops symptoms will have to self-isolate as well, and their workspace should be deep cleaned.

Other safety considerations

Another safety consideration during a time of reduced occupancy is checking that those coming into work include enough trained fire wardens and first-aiders to cope with local emergencies.

In workplaces where the work is not sedentary and computer-based, such as in factories and construction sites, an individual's health or safety could be compromised by the measures to limit virus transmission. An example would be where two people are needed to lift a heavy piece of equipment or materials safely. Lawrence notes that, although providing personal protective equipment (PPE) in the form of facemasks is the most obvious option, lots of businesses may look to mitigate the risk in other ways. PPE is the lowest level and last option in a hierarchy of health and safety controls that starts with avoiding or designing out the risky process and includes engineering controls, or providing equipment - such as a mechanical lifting aid - that would avoid the need for two workers to complete the lift. Where PPE is issued, workers must be trained to wear it properly.

Statutory inspections of certain types of machinery, such as passenger lifts and fire protection systems, provide another example where the responsibility to protect staff and others from virus transmission might rub up against other health and safety duties; it is an offence not to carry these out at the prescribed times.

"The HSE has not really moved on statutory inspections during lockdown and has said they shouldn't stop," says Lawrence's colleague Matt Kyle, an associate director at Osborne Clarke. Where systems cannot be put out of use and a thorough inspection would be too hazardous for other reasons, or a qualified inspector is unavailable, Kyle suggests that organisations should require maintenance staff to carry out visual inspections and record how the duty holder mitigated the risk of use without a full inspection. He expands, stating that: "Nobody should just assume that coronavirus just lets them out of their [statutory] obligations. You have to be able to justify the decision not to do it."

Alongside the legal duty of care to maintain health and safety, employers have an obligation under civil law to prevent injury or illness through their negligence. Lawrence says the scope for successful civil liability claims against employers from employees who continue to work and contract the virus is likely to be limited as long as the organisation has taken reasonable precautions such as those listed above - it is likely to be difficult for an individual to prove they contracted coronavirus at work if a robust system is in place, she suggests.

Where an employee is diagnosed with coronavirus and the employer has reasonable evidence that it was caused by exposure at work the case must be reported to the HSE or the local authority under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (SI 2013/1471). Kyle says organisations might want to err on the side of caution and report coronavirus cases, but notes that where there is no cluster of staff affected "you should try to be clear in the report that there is a possibility it is work-related but that you are reporting out of an abundance of caution as it isn't conclusive". He also points out that over-zealous reporting under the Regulations could count against some organisations as injury and illness measures are used by clients for contractor pre-qualification in commercial tenders.

Homeworking

UK employers and their workforces stepped up quickly to meet the Prime Minister's request on 16 March that people start working from home where they possibly could. According to government figures, 49% of adults in employment surveyed in mid-April said they had worked at home at least part of the previous week, compared with around 12% in 2019.

Though the general duty of care follows workers home if they are carrying out company business there, the domestic setting, where most of the set-up is not controlled by the employer, makes it impossible to treat it in the same way as a company workplace. In practice, physical health and safety controls for homeworkers can be reduced to a series of practical steps.

Before the current restrictions, employers with large-scale homeworking programmes fulfilled the requirements without the need for home visits by a company representative. Basic safety features such as fire risk from overloaded electrical sockets and trip hazards caused by trailing equipment cables can be checked remotely using a risk assessment checklist completed by the homeworker and emailed to their manager, who can escalate any problems to a health and safety adviser. Most risks can be mitigated by advice on safe and healthy arrangements such as adequate ventilation and lighting. However, periodic PAT testing and maintenance of laptops, printers and any other electrical equipment issued to homeworkers remains the employer's responsibility.

For those who were not routinely working from home before the current restrictions, home workspace is likely to be makeshift, without all the workstation features necessary for maintaining good posture, such as adjustable-height seating. The HSE has confirmed that, where workers are home-based temporarily, it does not expect employers to carry out a workstation assessment - normally required under the Health and Safety (Display Screen Equipment) Regulations 1992 (SI 1992/2792). However, to avoid individuals developing musculoskeletal disorders from prolonged laptop use on their sofas, it is best to advise them to take longer breaks, to stretch regularly, and to vary their work position occasionally where possible. Pregnant workers or those with medical conditions may need an individual assessment of their home workstation and to be supplied with extra equipment.

In some organisations, managers have resisted the spread of homeworking in the past, fearing that employees would not work their full hours unsupervised. Employers with large groups of homeworkers have often found the opposite is true. Without the cue of the office emptying at the end of the day, employees may put in excessive hours. Flexible working times are one of the benefits of home-based working and this should be the choice of the individual employee as long as they are contactable during normal working hours. Where space allows, setting up a workstation in a separate room helps keep a boundary between work and home, but even tidying a laptop and papers into a drawer or cupboard outside working hours helps to maintain a work-life balance. Protocols setting expectations that email or other messages outside business hours do not have to be dealt with until the following day may help curb the tendency for employees to feel they have to be "always on".

Since homeworking is inevitably lone working, isolation is another potential cause of stress. Video-conferencing, "buddy" systems in which colleagues pair up to maintain regular contact, and regular calls from line managers can all help to reduce an individual's risk of feeling detached from other workers or from the organisation while they are at home.

First-line supervisors and managers may also need extra care and support to make the shift to remote management with no prior training, especially where they have to manage people who are juggling their work with home-schooling children.

As with all health and safety duties, rather than simply trying to fulfil legal obligations, employers should be trying to safeguard their workforce because it makes good business sense. The care, loyalty and support an organisation shows to its employees during the pandemic is likely to be repaid by the employees and make the organisation more resilient in the months and years to come.