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The Health and Safety Executive (HSE) has set out new guidance where incidents of coronavirus may be reportable.
They are:
- an unintended incident at work has led to someone’s possible or actual exposure to coronavirus. This must be reported as a dangerous occurrence; or
- a worker has been diagnosed as having COVID-19 and there is reasonable evidence that it was caused by exposure at work. This must be reported as a case of disease.
'As prevalence of coronavirus increases in the general population, it will be very difficult for employers to establish whether or not any infection in an individual was contracted as a result of their work,' the HSE said in a statement. 'Therefore, diagnosed cases of COVID-19 are not reportable under RIDDOR unless there is reasonable evidence suggesting that a work- related exposure was the likely cause of the disease and this is supported by a registered medical practitioner’s diagnosis.'
Following the announcement, leading OSH lawyer Rhian Greaves, a partner at Pannone Corporate, said the new guidance poses more questions than it answers, particularly for those businesses with open workplaces that are operating away from the frontline NHS response.
Speaking to IOSH magazine, she said: 'In the absence of routine testing, what constitutes a diagnosis? What amounts to reasonable evidence? What level of investigation into each case is required? Given the ease of transmission, how can the employer (or indeed the employee) know exactly where and how the virus was contracted?
'The HSE is not to be criticised. Like all government agencies, it is racing to keep pace with this frightening pandemic. However, it is hoped that further guidance will be forthcoming soon to help employers navigate the rigours of RIDDOR reporting (with all the potentially diversionary investigation that entails) at this difficult time.'
In response, the regulator said: 'In these extraordinary times, the HSE is constantly reviewing the fast-moving situation with our partners across government to support the national effort to tackle Covid-19.'
It added that in some limited circumstances, where an individual has either been exposed to or contracted Covid-19 as a direct result of their work, those instances could be reportable under RIDDOR either as a Dangerous Occurrence (under Regulation 7 and Schedule 2, paragraph 10) or as a disease attributed to an occupational exposure to a biological agent (under Regulation 9 (b)) or as a death as a result of occupational exposure to a biological agent under Regulation 6 (2).
For an incident to be reportable as a dangerous occurrence, the incident must result (or could have resulted) in the release or escape of the coronavirus. An example could include a vial known to contain the coronavirus being smashed in a laboratory, leading to people being exposed.
there is still room for interpretation over what amounts to 'reasonable evidence' that the virus was contracted at work, with huge reliance being placed on any commentary from the diagnosing doctor
For an incident to be reportable as a disease due to occupational exposure to a biological agent, there must be reasonable evidence suggesting that a work related exposure was the likely cause of Covid-19.
Such instances could include, for example, frontline health and social care workers (for example ambulance personnel, GPs, social care providers, hospital staff, etc) who have been involved in providing care/ treatment to known cases of Covid-19, who subsequently develop the disease and there is reasonable evidence suggesting that a work- related exposure was the likely cause of the disease.
A doctor may indicate the significance of any work-related factors when communicating their diagnosis. For an incident to be reportable as a death due to occupational exposure to a biological agent, there must be reasonable evidence suggesting that a work-related exposure to coronavirus was the likely cause of death. A doctor may indicate the significance of any work-related factors when communicating the cause of death.
Rhian described the HSE's clarification as extremely helpful in confirming that an actual diagnosis by a medical practitioner is required before a case can be considered as potentially reportable. 'However, there is still room for interpretation over what amounts to 'reasonable evidence' that the virus was contracted at work, with huge reliance being placed on any commentary from the diagnosing doctor as to the circumstances of transmission (which may or may not be forthcoming),' she added.
'The HSE has repeated its focus on healthcare settings in its illustrative example, suggesting those workplaces are the target of this new guidance but in the absence of any specific confirmation of this all employers with open workplaces need to remain updated and alive to the potential need to report in diagnosed cases.'
Coronavirus has been listed as a notifiable disease under the Health Protection (Notification) Regulations 2010. This change in law requires GPs to report all cases of Covid-19 to Public Health England.
Under the Health and Safety at Work Act, employers have a general duty to ensure, so far as is reasonably practicable, the health, safety and welfare of their employees at work. HSE considers that if an employer is following the relevant PHE guidance for their sector in terms of controlling the public health risks, they will be taking reasonably practicable precautions to control workplace risks.