The challenge of managing the return to work during the coronavirus outbreak
Anna Naylor explains how employers can take reasonable and proportionate steps to ensure that workers can do their jobs safely during the pandemic.
The government imposed restrictions on movement during the pandemic which led to a surge in the numbers of individuals working from home but, with a mass vaccine unlikely for some time, many business leaders are planning how workers can be safely accommodated back into the workplace.
Guidance and the law
Employers have a duty under sections 2 and 3 of the Health and Safety at Work etc Act 1974 (“HSWA”) to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees and others who may be affected by their activities. This means that reasonable and proportionate steps should be taken to make sure that workers can do their jobs safely during the pandemic.
The government has issued guidance for businesses on working safely during coronavirus which includes sector/industry specific guidance covering construction and outdoor work; factories; plants; warehouses; offices; contact centres; shops and branches and those required to work in or from vehicles. This guidance is not mandatory but organisations who fail to follow this guidance are at risk of enforcement action in the event of a visit from the Health and Safety Executive or Local Authority. The measures that could be taken include the service of an Improvement Notice, Prohibition Notice Notification of Contravention (leading to a Fees for Intervention invoice) or a potential prosecution.
COVID-19 risk assessment
One of the key steps that all employers should take is to carry out a COVID-19 specific risk assessment. Business leaders and safety professionals should be consulting with their workers and Trade Union representatives in order to obtain the necessary information required for the risk assessment. Care should be taken to ensure that consideration is given to the workforce demographics and individual vulnerabilities such as age, pregnancy, mental health and relevant illnesses. In many cases, worker questionnaires can be a useful tool in identifying specific matters which may need to be taken into account in planning for the return to work, such as the need to travel by public transport at busy times of the day.
A key component of any COVID-19 risk assessment will also include cleaning requirements, handwashing regimes, social distancing and personal protective equipment. The assessment should consider what action should be taken in the event that a worker experiences symptoms of COVID-19. There are also likely to be industry specific factors which need to be taken into account such as the need to work in other people’s homes which may increase the risk of coming into contact with persons who may have COVID-19.
The government has indicated that for businesses employing 50 or more employees, it expects the results of such assessments to be published. Most medium/large sized businesses should therefore be publicising the practical steps that they are taking to manage the risk of COVID-19.
Risk assessments should be revisited on a regular basis to check whether they require updating. For example, as more workers return to the office or factory, this may impact on the one way systems that have been put in place. In addition, amendments may need to be made from time to time to reflect the practical difficulties posed by the frequent changes in government guidance.
Work-related COVID-19 cases
Where a worker is diagnosed as having COVID-19 and there is reasonable evidence to suggest that it was caused by occupational exposure, employers are required to report the case under RIDDOR. The figures up to 8 August 2020 indicate that there were 8,666 notifications of such cases including 125 death notifications. As expected, the majority of these reports related to the health and social work sector.
The significant number of work-related COVID-19 cases emphasises the importance of organisations being proactive in their approach to the management of the risks of COVID-19 and of having a clear and documented system which is regularly updated to keep workers safe. There should be an audit trail of all key decisions made by businesses in relation to COVID-19 which can be produced in the event of any regulator scrutiny at a later date.
- Take reasonable and proportionate steps to ensure that your employees can return to work safely
- Review the available guidance for your sector and consult with your employees and Trade Unions
- Carry out a risk assessment and keep this under regular review
- Have a system for employees to report any issues with following the control measures you have introduced or if they experience any COVID-19 related symptoms
- Document all decision making including in relation to whether a report is required to be made under RIDDOR
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