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As the UK begins to adapt to another blanket lockdown, it is timely to look at the Health and Safety Executive's (HSE) further guidance for employers struggling to determine whether confirmed COVID-19 cases within the workforce are reportable under RIDDOR, writes leading regulatory lawyer Rhian Greaves.
This latest attempt to clarify the position comes after questions were raised as to how employers, already under pressure from the effects of the pandemic, should interpret the legal reporting requirements.
Who must make the report?
RIDDOR requires 'Responsible Persons' to report certain matters to the HSE. Typically employers, the self-employed and others in charge of a workplace will fall into this definition depending on the circumstances.
What must be reported?
The HSE has identified three COVID-19 specific circumstances in which a Responsible Person should make a report:
- An accident or incident at work has, or could have, led to the release or escape of coronavirus. This must be reported as a dangerous occurrence.
- A worker has been diagnosed with COVID-19 attributed to an occupational exposure to coronavirus. This must be reported as a case of disease.
- A worker dies as a result of occupational exposure to coronavirus. This must be reported as a work-related death due to exposure to a biological agent.
RIDDOR typically requires diagnosis by a medical practitioner. However, given most COVID cases are diagnosed following a laboratory test, the HSE is taking what it calls a 'pragmatic approach in these highly unusual circumstances'. Responsible Persons are therefore on notice to treat any 'official confirmation' of infection as being equivalent to the diagnosis of a registered medical practitioner.
How does an employer determine when a report must be made?
The new detail added by the HSE has helpfully (and finally) given some clarity. The need to report a dangerous occurrence is, on the whole, restricted to those organisations working directly with the virus itself, either because they are handling it in a laboratory setting or because they are dealing with samples from patients.
However, most difficulty for employers appears to have arisen in determining when a case of occupational exposure to the virus has happened. We now know that when deciding whether to report this as a case of disease:
- a report is only required where it is more likely than not that the work was the source of exposure (rather than general societal exposure);
- there must be reasonable evidence linking the person’s work with an increased risk of becoming exposed to the virus, for example:
- Did the work being done increase the risk of exposure to COVID-19?
- Was there a specific incident that increased the risk of exposure?
- Did the work bring the person directly into contact with a known COVID-19 hazard without effective control measures in place (such as social distancing, PPE, etc)?
- Has a medical professional highlighted the significance of work-related factors when communicating a diagnosis? This seems unlikely given diagnosis is largely by laboratory test.
The judgment is to be made on available information; there is no need for detailed investigation.
Interestingly, the HSE has determined that work with the general public, as opposed to work with persons known to be infected, is not considered sufficient evidence to indicate that a COVID-19 diagnosis is likely to be attributable to occupational exposure and such cases do not require a report.
What does this mean in practice?
Determining that work is more likely than not to have been the source of infection is more straightforward for some employers than others. Those running laboratories seeking a vaccine or operating residential care homes may find this an easier process than a business in retail, manufacturing or construction for example. This is particularly so in times when the prevalence of the virus within the community is higher as it is now.
The guidance is clear that the employer does not have to conduct extensive enquiries to reach a conclusion as to whether an infection is work related. The HSE is openly stating that the decision can be reached on available information and warns against precautionary reports where there is no evidence that work is the likely source.
In reality, employers will need to consider each positive report and reach decisions based on the circumstances as they are known. This will vary workplace by workplace and local and individual factors may also be relevant, for example infection rate locally, means of travel to work, etc.
Where there are multiple cases in a workplace, clearly it is important to determine whether they are related and therefore whether the COVID risk assessment and resulting control measures need to be revisited in response.
How is the HSE responding?
The HSE is receiving hundreds of COVID-related RIDDOR reports each week, albeit numbers are around half that seen during the April peak of the pandemic (1183 reports per week at the peak compared with 530 reports in the week to 17 October).
It is perhaps telling that almost three quarters of reports have been from the health and social work sector. However, following the re-opening of large parts of the economy in the summer and the return of education in September, other sectors have begun to contribute to the total too.
The HSE notes that 'all cases that are reported…are being assessed and investigations initiated where incidents meet [the] published Incident Selection Criteria'. While the regulator’s ability to respond substantively has to be in question given the sustained budget cuts it has suffered in the past decade, the threat of enforcement is there and should be heeded when positive cases are identified.