COVID-19 vs Health and Safety Law

28 March 2020

In the past few weeks, our lives have changed beyond all recognition. With stringent restrictions on our movement, full time living together, virtually all jobs have changed in some way. With millions now working from home, our essential services roles not being able to adhere to the governments guidance on social distancing or being in isolation.

The majority of us have developed new skills in the virtual world of zoom meetings, networking relationship and personally delivering and adapting virtual face to face leadership training.  All great for the CPD!

Yet our health and safety legislation aided us for direction.

Our long-standing Law

The Health and Safety at Work Act is robust. Set to withstand the upheaval of Brexit, it is equally capable of responding to COVID-19, its general duties catering adequately for our ‘new normal’.

The starting point is the general duty under section 2 to ensure, so far as is reasonably practicable, the health and safety of all employees. While the risk of contracting coronavirus is not one created by work, it is clearly one that can be increased by normal working practices and so employers have a duty to identify and take appropriate measures to mitigate.

Well that’s simple?

Well, not quite. The reviews began with work task based risk assessments; on how the virus threatened to change how work could be carried out and how people could be infected (harm we call it the H&S world).

Some judgments are easy, office based staff may be able to work at home, field based likewise. But the exercise becomes more difficult when you identify those who cannot do so or those particularly vulnerable to the virus; pregnant workers, those beyond typical retirement age, those with underlying health conditions, those who care, those who cannot maintain the social distancing.  With controls measures such as PPE not available to protect the remaining workforce and keeping in mind balancing risk against cost!

Add to that the moving overload of government guidance and the impact of overlaying that advice on to clients existing systems without creating further risks.

Finally, take into account a dwindling workforce as employees follow self-isolation advice when symptoms appear in their households. The requirement to keep risk assessments constantly under review has rarely been so pertinent and useful.

The news of ‘we have a confirmed case’

For those left in the workplace, the employee must be told not to come to work and advised to follow the self-isolation guidelines from the Government. Clients have to be careful of presenteeism; as your duty extends to all your employees as well as others who may come into contact with your business.

Where you have had a confirmed case, fresh guidance from the Information Commissioner confirms that ‘you should keep staff informed about cases in your organisation’. Remember, you don’t need to name individuals and you shouldn’t provide more information than necessary. You have an obligation to ensure the health and safety of your employees, as well as a ‘duty of care’ to other.

For example, some of our clients have numerous of subcontractors working on site simultaneously, who are not their direct employees – they all needed to be informed.

If you have contractors carrying out maintenance and repairs, they to will need to be informed, also many of our clients manage office and residential block and have a legal duty under section 6 of HSAWA to inform tenants and occupiers – even the ones who are still carrying out essential services for our society.

Your legal obligations to home workers

Many organisations already employ staff who work from home, but now many sectors, suddenly have a workforce operating exclusively from their homes. Importantly, these people are still ‘at work’ and normal legal obligations apply. Going back to section 2, in practice, that means:

Assess the risks. Even though home working is temporary, it is good practice to provide staff with a checklist to help them make any necessary adjustments to their work station. Support this through training delivered by webinar, computer based learning or over the telephone.

Provide any equipment needed to create the right conditions for work. Foot rests, risers, ergonomic keyboards, document and back rests can all be  transported from the office or ordered.

Ensure any work equipment you send to any employees home is safe and without risks to health. A current PAT test is a must but think also about where the equipment will now be used; what measures need to be followed by an employee using a shredder in a home they share with children?

Mental health and employee wellbeing

We return to section 2. The employer’s obligation extends to the mental health and safety of employees just as much as the physical.

The onset of the pandemic has undoubtedly increased anxiety within the population, compounded by enforced and unknown periods of isolation.

As an employer, your duty extends to managing the potential for work related stress (WRS), which now incorporates the pressures created by lone working or working around others attempting to maintain social distancing as well as competing priorities as colleagues attempt to juggle caring responsibilities with the day job.

A risk assessment is key, looking at demands, control, support, relationships, behaviour and role on a job by job basis. Each of these pillars is likely to have been impacted by the spread of the virus regardless of whether your workforce is now home based or continuing to attend at work.

What support should you give?

Organisations should look beyond mere compliance. Supporting colleagues through this unprecedented period is legally and morally the right thing to do. Think about:

  • Information: share reputable information and advice and be clear about how the business is managing the situation.
  • Working hours: where employees are working longer hours to meet demand, this must be monitored and actively managed.
  • Systems, resources and processes: create continuity in systems access, decision making and resources.
  • Guidance: help employees with clear guidance. Set out some modified expectations and allow flexibility so the employee can contribute in a meaningful way but in one that does not unduly burden them.
  • Structure: creating structure in a home working day can be a challenge so guide colleagues to help them keep to a working routine.  Encourage employee to create a separate work area and take time for meal breaks and exercise as permitted by the government.
  • Health and wellbeing: where you have provision in place (for example through a health insurer), remind employees where they can go for professional help and support.
  • Contact: whether it is daily conference calls, allocating a buddy”, digital supervision or coffee via Zoom do what you can to maintain team morale.

We have published Guidance and a check list that can be downloaded with no charge from our website

Do you need to report to the HSE

The Health and Safety Executive (HSE)  on 9th April set out new guidance where incidents of coronavirus may be reportable. They are:

  • 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.

What else should you do?

Keep everything under review. As you do with all your risk assessments and method statements, carry out virtual training and keep records and monitor what is happening.  Engage with your employees and colleagues, take their suggestions and modify your approach as needed. Lift them up in that familiar safety blanket; right now we all need it.

Putting in the effort and resources now will be worth it when we return, it is proven in study after study.  That great leadership, direction, empathy and support brings productivity and profit.

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