Covid-19: Health and Safety and Regulatory Compliance

This Article has is now out of date following the HSE’s policy decision to regulate risks from viruses in general circulation – please see our latest article on Covid-19 and health and safety requirements. 

Many employers will already have begun to get to grips with the compliance issues concerning the control of Covid-19 and all the associated employment, commercial and business continuity issues.

The Government has been swift to publish guidance for employers and to publicise its approach to controlling the outbreak: business should familiarise themselves with this guidance as a matter of urgency. However, there are a number of less obvious issues that businesses should consider in relation to compliance risks:

1. The HSE has made statements that it considers influenza pandemics and, by inference, Covid-19 to be primarily a public health issue and not a risk which it will regulate, except where:
   1. the risks arise directly from an organisation’s work, for example in medical research, healthcare or cleaning/hygiene businesses;
   2. as a result of the management of Covid-19 risks, employers expose their employees and members of the public to risks which are covered by health and safety legislation e.g. the redeployment of workers to unfamiliar tasks or to lone or remote working as a consequence of a depleted staff resource due to sickness absence.
2. For most employers, it is the risk-assessment of contingency measures like home-working, that are likely to cause compliance issues.
3. The Government has issued sector-specific guidance, so following the generic advice will not necessarily be enough – employers in the healthcare, community care, residential, education, cleaning/hygiene and transport sectors should also consult the sector-specific guidance.
4. Where Covid-19 risks arise directly from your organisation’s work and not from the general circulation of the virus, the Government Guidance is not a definitive description of what you must do to protect employees and members of the public who could be affected by their operations. Such employers must refer to the legislation and guidance on the Control of Substances Hazardous to Health (COSHH).
   These regulations require a completely different level of response to that contemplated in the generic government guidance on Covid-19.
5. Even if Covid-19 risks do not arise directly from your operations, a failure to follow government guidance could be the basis of civil claims, particularly where there is a failure to manage risks arising from employees who are known to have been infected by ensuring they are not in contact with colleagues; that colleagues who have been in contact with them are appropriately isolated and that cleaning and hygiene measures are taken in relation to workplace premises (noting that cleaning/hygiene staff may need to be considered under the elevated requirements of the COSHH regime). Similarly, businesses should identify where employees are returning from virus ‘hotspots’ and take appropriate steps to determine whether those employees are likely to be infected before allowing them to re-enter the workplace. These steps will require a level of forethought and preparedness in order to ensure that they can be put into practice quickly and effectively.
6. The necessary steps to control risk could be very different depending on whom is likely to be exposed and their personal risk factors including age and existing health conditions. Employers should identify persons at higher risk from Covid-19 and adapt their response accordingly.
7. While the HSE has published little or no guidance specifically on Covid-19, extensive guidance was published in the aftermath of the 2009 global influenza pandemic. While Covid-19 is not influenza, the guidance produced by the HSE is a useful touchpoint for those seeking more detailed information about controlling risks from the general circulation of the virus pathogens in the general population. 

Ashfords Business Risk and Regulation Team has specialist health and safety lawyers who regularly advise on the COSHH regulations and also on public health issues including notifiable diseases and outbreaks.