We are currently in a novel and unsettling situation and have to be guided by the medical profession and the Government. Exposure to Covid-19 is very emotive with the potential for significant impact on businesses, families and individuals. The purpose of this briefing note is to advise on a risk-based approach that employers are encouraged to take to protect the physical wellbeing of their employees and the persons they are in contact with. Another briefing paper will follow on mental health.
In his address on the evening of Monday 23rd March, Boris Johnson said that “Each and every one of us is now obliged to join together, to halt the spread of this disease, to protect our NHS and to save many, many thousands of lives”.
This obligation will have an influence on all areas of our life for the foreseeable future. An exception to staying at home has been granted for travel to and from work, but only if the work activity is ‘absolutely necessary’. We should be able to determine whether conducting our work away from home is absolutely necessary at this present time, but the Government has provided further information on key workers  .
Employers have a duty of care towards employees and third parties under the Health and Safety at Work etc Act 1974. It would seem unlikely that the Health & Safety Executive would take a criminal prosecution with regard to exposure to Covid-19 as it will be difficult to prove the infection occurred in the workplace, but the legal obligation remains. However, when referring to companies conducting non-essential activity that force people into work or do not take suitable precautions, the Chair of the Business Select Committee has stated “in time, businesses will be held accountable for their role, what they’ve done in this pandemic”.
Becoming ill from Covid-19 is not an occupational illness (or injury) and will not need to be reported to the Health & Safety Executive under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013.
Employers may be more vulnerable to civil claims as they can be held liable for negligence if it is proved that there was a breach of the common law duty of care. For example, an employee or contractor who subsequently falls ill with Covid-19 could allege that exposure and transmission occurred whilst attending either essential or non-essential work where there was inadequate control. It is not beyond the realms of possibility that such action could follow, especially where individuals struggle with a loss of earnings which may be influenced by the length of the outbreak, and the Limitation Act 1980 allows for personal injury claims for up to three years from the date of illness.
Aside from the legal requirements, your brand reputation will ultimately benefit by conducting current activity in a responsible and ethical manner, or as the Chancellor put it, thinking of others first and acting with decency.
Remaining at work
There are some clear risk factors to consider for those who continue to attend a workplace, whether they are key workers or otherwise. These can be:
- A lack of suitable social distancing which is given as two metres / six feet.
- There can be no certainty that the persons present are not contagious or may even attend work with minor symptoms if there is an over-riding need or motivation to earn money.
- A large turnover / throughput of different persons will increase the likelihood that someone will be contagious.
- Handling different pieces of shared equipment and common surfaces will allow for environmental contamination.
- Welfare facilities that are distant from the workstation may be used less frequently.
- Individual perceptions of the pandemic will persist such that some may not choose to follow the Government advice.
- It is very possible that persons who travel abroad now will not be able to return to the UK until current Government restrictions are lifted. If it is deemed essential for you and your staff to travel abroad, check the country travel advice on https://www.gov.uk/foreign-travel-advice and recognise there may be a knock on effect to business operation.
The risk controls can include the following:
- A reduction in the workforce to increase the ‘social distance’ by, for example, extending project deadlines and reducing production / stock lines.
- Restrict the presence and movement of external persons such as contractors or delivery operatives.
- Allow flexible working hours or change shift patterns so that staff can avoid ‘peak’ times on public transportation or encourage the use of own transport.
- Use video conference calling facilities instead of face to face meetings.
- Employees working in larger spaces such as a warehouse will find it easier to practise social distancing. However, shift start times can be amended to restrict the crossover of staff and their contact / pinch points such as lockers rooms.
- Place additional barriers / spacing / markings in front of the interaction points such as retail checkouts and encourage contactless payment.
- Identify any additional training needed if individuals are moving to roles where there may be a new health and safety risk, such as fire marshal, first aid or using a machine.
- Ask staff to clean shared equipment, hand touch points and work surfaces, using domestic cleaning chemicals and a disposable cloth which is then disposed in a lidded pedal-operated bin.
- Use gloves where appropriate, avoiding any touching of the face and undertake thorough and regular hand washing. Whilst surgical masks may limit the number of particles breathed onto other people current advice states that they provide only limited protection except where used in healthcare environments.
- Ask all persons to actively declare that they are symptom free.
- Provide additional temporary welfare facilities.
- Send home anyone that becomes unwell in the workplace with a new, continuous cough or a high temperature and advise them to follow the Government’s stay at home guidance.
It will be necessary to instruct managers on the expected risk controls and monitor their implementation, especially the cleaning activity, replenishment of soap and hand sanitiser, availability or hot water and personal protective equipment.
A risk assessment should be prepared that records the controls being taken which in turn are briefed to employees who sign to confirm their understanding. This in turn will help with the mitigation of any subsequent civil claims.
There is some current discussion about construction sites. The Construction Leadership Council has produced some site operating procedures which can be applied to wider external workplaces https://www.constructionleadershipcouncil.co.uk/news/site-operating-procedures-during-covid-19/
Deciding who should work from home
The current guidance is for all persons to work from home. If this is not possible due to key working, the number of persons present at work can at least be reduced in the following order:
- Firstly, those that are at risk due to age (over 70), are pregnant, or either themselves or a family member has an underlying health condition are permitted to be absent from work / work from home. A more detailed list can be found at COVID-19: guidance on social distancing and for vulnerable people.
- Those that are able to work from home because the IT system, task or home environment is suitable is allowed to do so. This could be arranged on a rota basis to manage employees if necessary.
Line managers have a responsibility for the health and safety of their direct reports. Where homeworking is computer based it is suggested that the following steps are taken:
- Line managers should issue a temporary homeworker assessment  for their direct reports to complete together with supporting guidance  so that employees know of the potential for poor posture, what correct posture looks like and the need for breaks and movement away from the screen. This information should be easy to understand so there is no reason for line managers to be concerned about giving health and safety advice.
- Temporary homeworker assessments are to be completed without exception and passed back to the line manager for their review.
- In the first instance the line manager should identify employees with relevant existing impairments such as a back injury that also have a very poor workstation set up and escalate them to their Health & Safety Manager. These should be in the minority and photograph may be needed for further understanding of their workstation. As these persons may be most at risk it would be appropriate to provide specific assistance such as the provision of a chair or other furniture.
- The next step would be to consider employees with either relevant existing impairments such as a back injury or a very poor workstation set up and then decide if there are reasonable measures that can be taken.
- Encourage all staff to exercise. Posturite provide some useful workstation related exercises on their website – https://www.posturite.co.uk/help-advice/useful-resources/learning-guides/workstation-exercises
The position can change as the outbreak develops, but again this should be in line with medical and Government advice. The World Health Authority, Public Health England (https://www.gov.uk/government/organisations/public-health-england) and the NHS (https://www.nhs.uk/conditions/coronavirus-covid-19/) resources are the most appropriate for current medical information.
We are available to discuss any health and safety related concerns you have regarding current working practices or changes you may introduce.
  Templates and information available from Valtus (formerly Alium Partners)