Many countries are now starting to see a reduction in the number of Covid-19 deaths and organisations are reopening their premises for employees to return. Coronavirus, however, is still killing hundreds of people per day, so employers will have many questions on how they keep their business safe and legally compliant during the crisis.
With 195 countries in the world, it’s difficult to give specifics about legal compliance in each country in one article.
The International Labour Organisation (ILO) Global Database on Occupational Safety and Health Legislation (LEGOSH) provides a picture of the regulatory framework of the main elements of occupational safety and health (OSH) legislation. These include OSH management and administration, employers’ duties and obligations, workers’ rights and duties, OSH inspection and enforcement, among others. These will provide the basis for OSH principles that an organisation can follow to keep their workers safe.
Most countries will impose an overarching duty of care on organisations to protect the safety and health of workers and others affected by their activities. This includes surveillance of workers’ health in relation to work, surveillance of the working environment and working practices, a duty to provide first aid and welfare facilities and a duty to provide and ensure usage of Personal Protective Equipment (PPE), where needed.
This duty of care will extend to the management of potential Covid-19 infection in the workplace.
A generally accepted way of complying with this duty is the creation of a policy or plan on how to manage Covid-19. This will include responsibilities and arrangements within the organisation.
Creation of a Covid-19 written risk assessment, a subsequent safe system of work and training and instruction on risks arising from such documents. Control measures resulting from a Covid-19 risk assessment could include:
- Managing worker illness to prevent spread of the virus (home isolation)
- Ensuring that the workplace environment and activities do not unintentionally spread the virus to workers.
- Providing or redesigning facilities that can be prevent the spread of the virus such as hygiene stations
- Providing and ensuring that PPE is worn, where its use will prevent the spread of the virus.
Assessments will need to be reviewed and consulted on with workers.
An organisation should have access to expert advice and/or support in OSH to ensure that the risk from Covid-19 is properly managed within the workplace. They will need to be competent to undertake their duties.
Workers have the right to enquire about risks and preventive measures and to remove themselves from a dangerous situation. They have the right to a change to their working environment or practices to reduce the risks from Covid-19 (this could include working from home).
Workers at all levels should reasonable steps to protect their own safety and health and others. This includes reporting to their employer if they have symptoms of Covid-19, self-isolating to protect their fellow workers, thereby removing themselves and others from a dangerous situation.
An organisation should consult with workers on the risks from Covid-19 in their workplace. This allows workers or their representatives to address any issues resulting from the virus to management. Consultation will lead to greater engagement and buy-in.
Each country should have specific legislation relating to biological hazards (including Covid-19) that will need complying to. It is important to consider that other legal requirements may be affected by changes to the workplace by Covid-19 controls. These could include fire safety (due to redesigning open-plan offices), confined space working (due to risk of spreading the virus) and ergonomic hazards (such as lack of computer equipment in home working).
Most countries will have a requirement to report incidences of Covid-19 occupational exposure in their workers. Therefore, organisations should have a system for identifying potential exposure scenarios that could occur in their workplace to ensure that Covid-19 cases are reported correctly.
Organisations should be aware of possible Covid-19 enforcement actions related to the country or countries that they operate in. These enforcement actions will relate to the rules put in place by the country during the pandemic.
Case study: Covid-19 workplace legal obligations in the UK
With the recent relaxing of lockdown measures in the UK, many organisations are reopening and people are going back to work. But coronavirus is still killing hundreds of people per day, so employers will have many questions on how they keep their business safe and legally compliant.
The UK Government has produced guidance to various sectors of business to help organisations work safely, but how is the risk of coronavirus infection in workers really being interpreted in UK law?
Let’s explore some legal terminology and how Covid-19 could be represented.
This is terminology within common law where the harm to the claimant (usually the worker) was ‘reasonably foreseeable’ by the defendant (usually the employer). It may not have been foreseeable that Covid-19 was an occupational risk in December 2019, but it’s definitely a fundamental issue in returning safely to work now.
Also known in UK law as ‘so far as is reasonably practicable’, this terminology is used for the balance of risk and cost, with regard to the resources required to avert the risk.
Covid-19 can kill, so the risk to workers is likely to be high. Therefore, it is expected that employers would put in place sufficient controls to mitigate or eliminate the risk of workers contracting the viral infection in the workplace. It would not be ‘reasonably practicable’ to do nothing.
With regard to Covid-19, to prove corporate manslaughter the infection would be contracted at work (challenging due to its propensity in the community) with the organisational controls put in place grossly below reasonable standards.
Any prosecution decision would also include the public interest test as a generalised company failing.
3.1 The Health and Safety at Work Act 1974 (HSWA)
There are some general requirements in HSWA that Covid-19 could influence. These relate to people, workplace, equipment and systems.
During the Covid-19 crisis, it’s more difficult to ensure that thorough examination and testing (TE&T) is undertaken on plant and equipment requiring it. This can be due to reduced availability of engineers or issues with social distancing. This also affects the Lifting Operations and Lifting Equipment Regulations (LOLER) and Pressure Systems Safety Regulations (PSSR). Further information can be found via the HSE website.
People, workplaces and systems
It’s important to consider the organisation’s activities, including the work environment, that could affect worker’s health and safety, while Covid-19 is still a threat. Maintenance of the workplace such as cleaning, services and inspections may be more of a challenge due to social distancing and illness in contractors. Therefore it is important to prioritise work that absolutely has to be done to stay compliant.
Provision of appropriate information, instruction, training and supervision will be required for new measures to control the risk of Covid-19 in the workplace.
3.2 Management of health and safety at work regulation 1999
The main requirement on employers is to carry out a risk assessment. Employers with five or more employees need to record the significant findings of the risk assessment. Covid-19 is a hazard, no different from any other, that needs to be properly assessed and have suitable control measures in place.
Covid-19 risk assessments will need to be communicated to relevant people. This not only includes workers directly employed by the organisation, but also contractors, members of the public and others than can be affected by the activities.
Health surveillance can also be challenging during the Covid-19 crisis. As well as keeping compliant with reporting requirements for Covid-19 (see the RIDDOR heading), organisations must keep up to date with routine health surveillance. It’s important to consider what activities requiring these health surveillance measures are needed to keep the organisation functioning.
3.3 The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR)
RIDDOR reporting of Covid-19
Organisations must make a report under RIDDOR (The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013) 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.
3.4 Control of substances hazardous to health regulations 2002 (COSHH)
Where foreseeable that a worker will encounter Covid-19 in the workplace, there is a requirement under the Control of Substances Hazardous to Health Regulations 2002 (COSHH) that it is either prevented or, where this is not reasonably practicable, adequately controlled.
During this crisis, it can be foreseeable that equipment or surfaces can be unintentionally contaminated by infected but asymptomatic workers. This is especially relevant where workers, who are known to have been infected, have entered the workplace.
Controls on a COSHH assessment can vary according to the risk of infection to workers.