The Health and Safety Executive has introduced new guidance requiring employers to make a report in respect of cases of COVID-19 within the workplace. This is under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (“RIDDOR”).
This guidance is likely to be of particular interest to those employers with employees for whom remote working is not possible, for example those within the construction industry.
The consequences that employers may face, if they fail to make such a report, could be as severe as an unlimited fine and/or a custodial sentence (the latter in the most serious of cases).
The guidance requires employers to make a report when:
- “an unintended incident at work has led to someone's possible or actual exposure to COVID-19” which must be reported as a dangerous occurrence. An example given by the HSE is a lab worker accidentally smashing a vial containing COVID-19;
- “a worker has been diagnosed as having COVID-19 and there is reasonable evidence that it was caused by exposure at work” which must be reported as a case of disease. An example given by the HSE is a healthcare professional diagnosed with COVID-19 after treating patients with COVID-19; or
- “a worker dies as a result of occupational exposure to coronavirus” which must be reported as a death due to exposure to a biological agent.
The guidance, however, appears to fail to take into consideration the issue of the lack of widespread testing for COVID-19 within England and therefore businesses may be forced to determine whether a worker, who decides to self-isolate as a result of developing symptoms consistent with those of COVID-19, should be considered “diagnosed” as having COVID -19.
Employers will then need to further consider whether there is reasonable evidence to suggest that those “diagnosed” workers have been exposed to COVID-19 as a result of an exposure at work (as opposed to other activities such as shopping for basic necessities or travelling to and from work) before determining whether the incident is reportable.
It may be that some employers will take the view that a worker should only be considered “diagnosed” as COVID-19 if the worker were hospitalised or, at least, had obtained an NHS 111 Isolation Note. In the absence of any further guidance from the HSE in respect of when a reporting obligation arises, and in view of the potentially high penalties, some Employers may wish to take a precautionary approach to ensure compliance and therefore make a report (which can be done via hse.gov.uk) where any worker develops symptoms consistent with COVID-19.
Further guidance has been called for, however in the meantime employers may need to consider workers’ circumstances on a case by case basis and determine whether there is any reasonable evidence to suggest there was exposure to COVID-19 in the work place.
For further information and updates on the obligations that are being placed upon employers as a result of COVID-19, please see our other articles in our employer series or contact us today for a no obligation conversation as to how we may be able to advise your business.
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