Many businesses are planning how to operate under the new measures in the roadmap for reopening announced by the government on Monday 11 May. Employers will need to strike a balance between the desire to restart the economy, and the very real and new risks posed by the COVID-19 pandemic. Employers should bear in mind their obligations under health and safety law, which continue to apply in these new circumstances.
Duty to protect health
Employers have a duty to protect the health, safety and welfare of their employees and any other people who might be affected by their business. This includes, for example, customers, visitors and contractors.
Assess the risk
Employers should carry out COVID-19 risk assessments for each workplace setting, and for each work activity being carried out, and keep these updated whenever things change. Government guidance may provide a useful starting point, together with any sector-specific guidance or guidance produced by trade bodies. However, each risk assessment will be specific to the circumstances, depending on the nature of the business, and how it is organised, operated, managed and regulated.
It is important to assess all risks arising from new working practices, including those which are not directly related to COVID-19 (for example, lone or remote working risks, and mental health issues which may be connected with long-term remote working).
Mitigate the risk – so far as reasonably practicable
Employers should implement control measures to either eliminate the risks or reduce them so far as reasonably practicable. What is reasonably practicable may be different for each employer – employers must evaluate each identified risk against the costs involved (financial, time and resource commitments) in mitigating it. The higher the risk, the more an employer would be expected to do to address it. Measures to address COVID-19 risks include enabling working from home where possible. For workplaces where people cannot work from home, measures might include social distancing, staggered start times, more frequent cleaning, restrictions on high-traffic areas, and measures to avoid queues and congestion. You may decide that you need staff to wear PPE and, if so, you should provide training on how to use it properly.
Publish your risk assessment
Employers should provide information to employees about the risks identified, and what measures have been taken, including any COVID-19 specific instructions or training. Government guidance includes an "expectation" that all employers with 50 or more staff should publish COVID-19 risk assessments on their websites. However, this is currently not a legal requirement.
Make the necessary notifications
These might include notifications to employees, insurance companies, regulators (if required, for example, for COMAH sites), customers, contractors and anyone else who might be affected by the new arrangements. If you become aware that someone has contracted COVID-19 as a result of exposure in the workplace, or there has been a serious risk of exposure, you are required to make a RIDDOR notification via the HSE website.
Take into account different requirements in devolved nations
Public health is devolved in Northern Ireland, Scotland and Wales. Health and safety law is broadly the same across all four nations. However, there are differences in the approach to COVID-19 which should be taken into account.
Health and safety imposes a "reverse burden of proof" if an employee suffers an injury (or contracts a disease) in the workplace. The burden falls to the employer to show that they did everything reasonably practicable to reduce the risk. Failure to comply with health and safety law is a criminal offence, with potentially unlimited fines for companies, and personal liability for directors and officers.
Companies should also consider the risks of civil liability towards employees (or indeed customers, clients or contractors) and the possibility of civil claims for negligence. In claims of this nature, the burden of proof will be on the claimant who will need to prove that it was more likely than not that they contracted coronavirus whilst at work. Currently that may be difficult, but as advances are made in testing and, in particular, in contact tracing, that hurdle may become easier for an employee to overcome. The employee will also need to establish that the employer failed to take reasonable care for their health and safety. Following the government guidance and any supplemental industry guidance will be a key aspect of establishing whether the duty of care to an employee was met. Meticulous record-keeping around changes to systems, procedures and processes will be also be crucial.