07 Apr 2020

We previously outlined some of the key questions that we had been asked by businesses in relation to managing the risks of COVID-19 from a health and safety perspective. This note provides an update of the position (as at 3 April 2020) to reflect recent developments which remain under constant review.

What are the legal duties upon businesses?

To take reasonable steps to ensure the health and safety of anyone, including employees and non-employees (such as contractors), who might be placed at risk by your business activities.

This includes providing a safe working environment by taking reasonable steps to stop the spread of COVID-19 and ensuring that employees can work from home safely as explained in more detail below.

What general approach and steps should businesses be taking?

The risk of COVID-19 should be assessed and appropriate control measures should be put in place to prevent the spread of the virus.

Practical guidance has been published by the government online (available here) for businesses and specific industry sectors explaining what control measures should be put in place for those businesses and services which are permitted to remain open.

Employers should identify employees who are at higher risk of illness due to COVID-19, particularly those who fall within the "extremely vulnerable" criteria (available here), and encourage all employees to let them know of any particular circumstances which may place them at higher risk so that appropriate adjustments can be made.

Is there any specific guidance for those involved in engineering, building and construction work?

Apart from the general guidance referred to above, the government has not published any specific guidance for the construction industry. However, the Construction Leadership Council has published guidelines (updated on 2 April and available here) which addresses key areas of concern.

Do businesses have to conduct contact tracing if an employee has tested positive for or is suspected of having COVID-19?

This is addressed in our briefing note available here.

Is there any guidance in relation to PPE and the fitting of face masks?

Yes, the HSE has published specific guidance (available here) relating to fit testing of face masks to avoid COVID-19 transmission. More detailed guidance is available for healthcare providers from the NHS online.

What approach is the HSE taking to regulating at this time?

The HSE's regulatory approach is taking "a flexible and proportionate account of the risks and challenges arising from the pandemic".

At the time of writing, the HSE has suspended targeted inspection activity of high-risk industries that are not part of the major hazard sectors, including construction and manufacturing.

Regulatory intervention work is being undertaken remotely where possible but site visits will still be conducted, including offshore, when it is safe and necessary to do so. See here for further details.

Is there any guidance available regarding ongoing health/medical surveillance of employees?

Routine health/medical surveillance is a statutory requirement for employees engaged in particular work or who are exposed to certain substances or hazards. This includes, for example, workers exposed to vibration, noise, asbestos and hazardous substances at work.

HSE has published guidance for employers (available here), which outlines a flexible approach to routine health/medical surveillance in response to the current situation. Medical surveillance can be conducted remotely in a number of circumstances and some tests, such as audiometry, can be deferred for a period of three months so long as the particular employee concerned does not identify any relevant problems.

What happens if it is not possible to undertake statutory inspections due to availability of engineers?

Certain equipment, such as pressure systems, and lifts and lifting equipment, is required under legislation to be examined and tested by competent persons at specified intervals. This remains the current position: these requirements have not been relaxed following the COVID-19 outbreak.

The Health and Safety Authority (HSA) has published guidance for Irish businesses (available here) which emphasises that all workplace equipment must be safe for use and if there are any concerns regarding the safety of equipment it must be taken out of service until such concerns have been addressed.

The HSA is taking into consideration all matters of fact when deciding the appropriate level of action to take where any contravention is identified. We would anticipate that the HSE will adopt a similar approach to businesses in Britain but this is yet to be confirmed.

Businesses should also be mindful of the fact that continued use of workplace equipment which has not been examined and tested within the specified period may invalidate insurance cover.

Should first aiders be taking any precautions?

Yes, control measures should be put in place to protect first aiders from the transmission of COVID-19. Businesses may find the government guidance for first responders (available here) helpful. The HSE has also published guidance relating to ensuring that sufficient cover is available to provide first aid and the relevant qualifications (available here).

Do I need to report cases of COVID-19 under RIDDOR?

Individual cases of COVID-19 are generally not reportable. This is on the basis that it is likely to be difficult to prove that the relevant individual contracted the disease from exposure at the workplace.

Staff are working from home, what steps should we taking to ensure their safety?

Employers have a duty to protect employees from the health risks of working with display screen equipment, such as laptops and tablets, under the Health and Safety (Display Screen Equipment) Regulations 1992.

Businesses should therefore be providing employees with training and information to allow them to work from home safely as well as conducting workstation assessments. Information could include, for example, instructions on how to set up a laptop correctly at home to avoid muscular pain. Further guidance is available here.

The mental health of homeworkers should also not be neglected. Home workers should not feel isolated and unsupported by colleagues.

Further information and support

Should you have any queries or require assistance with these issues, please do not hesitate to contact the specialist health, safety and environmental team at Womble Bond Dickinson, who would be happy to help.