COVID-19: returning to work - Health and Safety considerations for employers and businesses

The spread of COVID-19 has required employers and businesses to carefully consider the duty of care owed to employees, contractors and customers on-site. Although there are general principles that should be followed to meet this duty, site-specific and industry sector considerations contained within the Secure Guidelines² must also be incorporated into any return to work planning. 

In terms of the fundamental regulatory controls, under the Health and Safety at Work Act 1974, employers have a legal duty to ensure the health, safety and welfare of all employees during the course of employment. Further the Management of Health and Safety at Work Regulations 1999 impose a duty to take reasonable measures, ensure a safe place of work and provide appropriate equipment. A breach of such duty could result in an employer being found criminally liable as well as having to compensate employees for injury and losses which they prove were caused by, or materially contributed, by a failure to meet such duty.

In addition to the above, a common law duty of care requires employers to take steps to contain infectious diseases and prevent the infection of others or the exposure of others to the risk of infection. It is worth noting, that COVID-19 has been added to statute (Infectious Diseases (Amendment) Regulations 2020) and has been declared an infectious disease subject to statutory control as from 28 February 2020 (requiring notification by a medical practitioner who becomes aware or suspects an instance of such disease to a medical officer of health and the Health and Safety Executive ("HSE")  Health Protection Surveillance Centre³).

Further, the Chief Coroner has published guidance on whether, and how, coronial investigations into workplace deaths should be reported and opened. As COVID-19 is a naturally occurring disease the vast majority of deaths will not be referred to a coroner. A possible instance where a report should be made occurs where a medical practitioner "suspects that the person’s death was due to… (ix) an injury or disease attributable to any employment held during the person’s lifetime."

To discharge these duties businesses must show that they took reasonable steps in mitigating the relevant risks. For most, this will require implementing policies and procedures that are based on and follow the latest Government and trade association guidance.  It is important that such policies and procedures are tailored to a business' specific risks (following an appropriate risk assessment) and there is evidence of implementation and crucially communication to staff and other impacted persons.

It would seem reasonable for any employer to ensure all Public Health England ("PHE") guidelines on H&S during the pandemic are followed as well as closely monitoring and implementing the Secure Guidelines and any further advice from Government and relevant industry bodies and trade authorities.

A starting point for many employers and businesses will be the review and implementation of suitable risk assessment procedures. On the 11 May 2020, the UK Government released more targeted guidance on the requirements for employers and businesses to publish a specific COVID-19 risk assessment in connection with the potential return to on-site work.

Within the latest guidance the UK Government have set out the expected 'threshold' requirements for specific businesses and industries to adhere to, which is targeted at 8 sectors and business categories. This guidance  contains detail on how social distancing and other control measures should be implemented across various different sectors. The characteristics of differing workplace settings will ultimately guide the requirements for a comprehensive risk assessment, however in general, key steps to be considered include:

• Consultation with workers, trade unions and/or stakeholders
• Documenting H&S risk assessments (website publication expected for all businesses with over 50 employees)
• Creating or updating H&S policies and procedures
• Health screening and monitoring
• Identification of vulnerable and high risk individuals
• Provision of suitable personal protective equipment ("PPE") (only where necessary)⁴
• Workload management (resulting from staffing reductions) – of note, mental health is a key area of risk and one specifically flagged by the HSE
• Modifications to the workplace set-up

HSE have published guidance to assist premises on best practices for risk assessments, which can be viewed here.

The boxes below provide a brief overview of the headline areas on practical measures that can be implemented, although sector specific guidance under the Secure Guidelines should be reviewed for a more tailored approach. The specific needs of each business will differ substantially and both employers and site managers are advised to review sector specific and trade organisation guidance to ensure the most suitable measures are being implemented.

For further information in relation to specific sector and procedural guidance, please review the selected materials below:

Can my business premises re-open? Please see UK Government Guidance

What sector guidance should I follow? Please see UK Government Guidance

What contact tracing measures are envisaged? Please see Travers Smith Article

The new sector Secure Guidelines were developed following a consultation period with approximately 250 businesses, unions, industry leaders and devolved administrations. This guidance only applies to business premises that are currently operational. This also includes guidance for shops which the Government believe may be in a position to begin a phased reopening at the earliest from the 1 June. Guidance for other sectors that are not currently open will be developed and published ahead of those establishments opening to give such businesses time to plan ahead.

At this stage, the Secure Guidelines cover businesses and/or sectors that include:

• Construction and other outdoor work;
• Factories, plants and warehouses;
• Homes;
• Labs and research facilities;
• Offices and contact centres;
• Restaurants offering takeaway or delivery;
• Shops and branches; and
• Vehicles

In addition, the UK Government have provided 'safer transport guidance for operators', which outlines measures to assess and address the risks of COVID-19 in the transport sector across England, please review this here.

Given the communicable nature of COVID-19, a significant challenge to any successful employee civil claim will be proving causation.  

In addition to establishing a breach of duty, an employee would also need to demonstrate that such breach made a material contribution to the injury sustained in order to establish liability. Proving this causal link with respect to COVID-19 may be extremely difficult due to a number of factors, including:

(i) proving the infection occurred on-site (and not elsewhere, for example on an employee's journey to or from work);

(ii) demonstrating that the infection itself resulted from a specific workplace breach or failure to implement adequate H&S practices; and

(iii) proving apportioned likelihood of infection where an employee works at multiple sites.

As the challenges faced by meeting the assessment of causation are yet to be tested in connection with COVID-19, it remains difficult to anticipate how the Courts will apply the common law, contractual provisions and underlying regulations in respect of any claim arising as a result of the current pandemic. Following the release of the Chief Coroner's recent guidance, it seems plausible that any fatality deemed to have arisen as a result of COVID-19 in the workplace may see the Coroner’s Court as the first forum in which these issues are addressed. 

Aside from claims relating directly to alleged health and safety breaches, employers may face wider exposure to potential employment claims under laws protecting employees from discrimination, as well as those protecting whistleblowers from dismissal or detriment.  We consider the risk of claims to be concentrated in three main areas:

1. selecting employees to return to work;
   
   
2. managing employees who refuse to return to work for health & safety reasons; and
   
   
3. supporting employees who are or might be disabled (both those who may have become disabled as a consequence of COVID-19 and also those who have other health conditions which make them more vulnerable to infection or severely negative outcomes if infected), or whose requirements (such as religious requirements) may add complexity to health and safety measures.
   
   

Selecting employees to return

Employers will need to give careful consideration to the selection process that they implement in order to determine which employees to return to the workplace first (or in what order they return).  As a general rule, businesses will have flexibility to make selection determinations based on business needs and requirements.  However, any selection process will need to avoid selection criteria which may be discriminatory.  There is a particular risk of potential indirect discrimination (which arises where a policy or practice is applied equally to everyone but disproportionately affects a particular, protected group).  For example, it may appear to make sense to prioritise the return of employees who do not have childcare or other caring responsibilities.  A policy of this kind could, however, disproportionately affect men and women in different ways.  Women, who may bear the brunt of the caring responsibilities, could be more likely to be excluded from the workplace (potentially on reduced pay).  Men could also argue a disadvantage if they are more likely to be required to return to work in the early stages, when the COVID-19 related risk may be more pronounced.  These perceived disadvantages could each give rise to indirect sex discrimination claims, unless the employer can show that the policy was a proportionate means of achieving a legitimate aim.

It will be important for employers to engage early with their employees to gauge their appetite to return to work and any personal challenges that they may face.  Those with caring responsibilities may, indeed, prefer to have their return to work deferred.  However, an employer will be more likely to mitigate its risk if that outcome is arrived at by way of engagement with employees, with the employee driving the outcome, rather than through mandating the approach.

Managing refusals

Many employees are expressing concerns about returning to work, and some may refuse to do so even in circumstances where their employer believes it has taken all reasonable steps to protect the health and safety of its workers.  Some of these cases may be resolved through clear and supportive communication which can act to reassure employees.  However, in circumstances where employers are met with staunch refusals, they may be left with the unappealing route of giving employees an instruction to return and treating a refusal to do so as a disciplinary matter.

This is a particularly challenging scenario, as employees who refuse to return to work due to a reasonable belief that there is a serious and imminent danger, or who take steps to protect themselves or others from that danger, have a right at law not to suffer a detriment.  An employer who takes disciplinary action against such an employee would need to feel confident that it could establish that the employee's belief in the danger was not a reasonable one. 

Strategies for mitigation of this risk align with the wider strategies around mitigating health and safety risks in general – i.e. ensuring that the measures implemented following the risk assessment are clearly documented, implemented and communicated. Alternatives to requiring the employee to attend the workplace, such as continued homeworking, or paid or unpaid leave arrangements, should also be considered where possible. 

Supporting employees

Employers are under a duty to make reasonable adjustments for employees who suffer a disability.  For these purposes a "disability" is any physical or mental impairment which has a substantial, long-term effect on an employee's ability to carry out their day to day activities.  As well as the more obvious adjustments (such as to enable access to premises, or the provision of auxiliary aids), the duty to make reasonable adjustments is also required where an employer applies a "provision, criterion or practice" to an employee which substantially disadvantages a disabled employee as compared to those who are not. 

In the context of COVID-19, requiring employees to attend the workplace (even if appropriate health and safety measures have been implemented) would likely constitute a "provision, criterion or practice" which would disproportionately affect employees who are vulnerable due to health concerns.  Such employees may have a higher risk of infection and/or a higher risk of negative outcomes if they are infected.  Some employees may also be newly disabled following infection by COVID-19 (i.e. if they are expected to have on-going long-term health implications).  In these cases, it will be incumbent on the employer to consider what reasonable adjustments can be made.  Continued working from home may be reasonable in many cases.  Employers should also consider whether any additional PPE should be provided to disabled employees who cannot work from home, and whether there are other additional steps that can be taken to afford a higher level of protection to these employees.

Some employers may also encounter employees whose religion and belief includes a requirement which is not entirely compatible with PPE (for example, wearing a beard or a turban may impede the use of masks).  Requiring an employee to shave their beard or remove their turban could give rise to potential indirect discrimination claims.  In these circumstances, the employer is likely to have a legitimate aim (i.e. health and safety), however, the question will be whether their proposed approach is proportionate.  Consideration should be given to whether other types of PPE could be used which would be more effective, notwithstanding the employee's beard or clothing, and also whether duties can be modified to lower the potential risk faced by the employee.

On a more practical note, many employers are concerned with what they should do if a case occurs within their workforce. In addition to undertaking the response steps detailed above, is an employer required to notify the authorities?

The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations ("RIDDOR") make the reporting of certain workplace accidents, occupational diseases and specified dangerous occurrences a legal requirement.

RIDDOR does not in most cases look to monitor communicable diseases (save for where the workplace specifically involves the handling, use, treatment, disposal, etc. of such pathogens and a failure has resulted in an exposure). 

Given the current unprecedented nature of COVID-19 businesses are seeking clarity on whether any obligation falls on them to make a RIDDOR report if someone on-site, or during the course of their employment, contracts COVID-19. As at the date of writing, the HSE had recently issued guidance on RIDDOR reporting of COVID-19.  The guidance states that a report under RIDDOR is only required where:

• an unintended incident at work has led to someone’s possible or actual exposure to coronavirus (to be reported as a dangerous occurrence).
• a worker has been diagnosed as having COVID-19 and there is reasonable evidence that it was caused by exposure at work (to be reported as a case of disease).
• a work related fatality has occurred as a result of occupational exposure to coronavirus.

There are a number of elements that must be met where there is a reporting requirement for (i) a dangerous occurrence, and/or (ii) a case of disease.

These elements make it unlikely that person to person transmission in typical workplace settings would realistically trigger an obligation to report under RIDDOR (although there may be circumstantial exceptions for certain workplaces such as clinical premises, hazardous waste management sites, testing sites and laboratory settings).

This is further supported by current guidance on the triggers for needing to report:

Industry specific bodies have released industry specific guidance on RIDDOR reporting for COVID-19 incidents. For example, guidance from the transport sector is as follows:

Guidance from the Office of Rail and Road

There remains some ambiguity for businesses in the current COVID-19 climate in relation to operational reporting such as RIDDOR, particularly in respect of guidance for non-healthcare settings. Businesses and advisers should continue to monitor HSE releases in order to gain clarity on what reporting obligations may arise as businesses begin to return to on-site work practices.

Protection from claims and mitigating the risk of employees being exposed to COVID-19 brings to the forefront the importance of insurance to protect employers and businesses where something does ultimately go wrong.  

Generally speaking, UK employers' liability ("EL") policies will provide for most/if not all injuries or illnesses suffered by employees whilst working and where the employer is at fault.  Typical UK EL policies have few or no exclusions. Some major insurance providers in the UK have made positive public statements in connection with EL policies responding to COVID-19 claims.  For example, AVIVA Broker publicly stated that, "‘Illness’ is not defined so could include legal liabilities incurred from COVID-19 in a situation where the insured has breached their duty of care".

It is generally felt that current EL policies should respond to civil liabilities for COVID-19 related injuries sustained by staff where an employer has breached its duty of care – but this as yet has not been tested by the Courts. In all likelihood, as detailed above, the underlying claims will be difficult for employees to successfully bring in most work scenarios. However, where you are dealing with higher risk workplaces (e.g. care homes, laboratories) such cases may be more foreseeable and therefore adequate EL insurance cover will be even more important.

EL policies are unlikely to respond to losses incurred due to regulatory investigations into, and subsequent prosecutions for, failures of a business to discharge their duty of care (e.g. action brought by the HSE). As standard, criminal liabilities are not picked up by insurance products, although legal defence costs may be covered (and potentially prosecution costs too, although this is rarer in practice).  It will be interesting to see if costs and liabilities stemming from whistleblower actions and related employment tribunal cases will be recoverable.

Businesses should carefully review and discuss with their insurance brokers/providers whether diseases or pandemics are specifically excluded under their existing policies or what factors limit the extent of cover in the current situation. Due to the exceptional economic situation resulting from the pandemic, there is no 'industry standard' on inclusions and exclusions in these circumstances.  The ability to claim will be entirely dependent upon the specific circumstances and precise terms of cover under any such policy.

There is currently no proposal to establish a 'general' UK Government indemnity, immunity scheme or relief from claims fund in relation to the COVID-19 pandemic (although a statutory provision for an indemnity in relation to "health service activities" under the Coronavirus Act 2020 is established, with additional calls by the Medical Defence Union stating that this should be changed to immunity to avoid the impact of litigation on the medical professionals concerned).

As businesses slowly return to a semblance of normality, there could be some scope to address the extent to which they may be afforded protections from liability in order to prevent a policy of 'shut up shop' as a risk aversion tactic, however at this point in time this seems unlikely.

With the help of a number of leading lawyers across the globe, Travers Smith have been tracking restrictive measures and the slow process of their relaxation in certain jurisdictions. As part of this, specific measures and guidance for employers in these jurisdictions to follow has been released by national authorities.

So far, we have seen a number of restrictions eased across Europe, North America and Australia, with countries generally implementing (or planning to implement) a staggered approach to lifting lockdown measures, with the largest relaxation expected around the middle of May to the beginning of June. By way of example,

• In Austria, on 14 April 2020 small retail shops were allowed to re-open provided their shops had: (i) a shop floor with max. 400m² sales area; (ii) only 1 customer per 20 m²; (iii) a maximum capacity limit (by implementing entrance controls); (iv) customers and employees wearing face masks; and (v) regular disinfection procedures in place. This relaxation has since been extended to all retail stores and hairdressers from 1 May 2020.
  
  
• Similar measures have been implemented in Spain, Switzerland and Italy (the former where it is hoped that, from 25 May 2020, restaurants and bars will be able to reopen provided capacity is limited to 1/3, and subject to opening hour restrictions and social distancing measures).

What is also clear is that any easements will be closely monitored, with any signs of regression towards higher COVID-19 community transmission rates noted as trigger events for the reintroducing of more restrictive measures. This is reflected in the staggered approach to rolling back lockdown measures. By staggering their lockdown exits, countries hope to be able to monitor the effects of each stage of relaxation of restrictions on transmission rates, and to consider whether extensions, accelerations or reversions will be needed.

The changeable nature of these restrictions will create its own difficulties and uncertainties for businesses hoping to rely upon them in order to re-open. There will likely be cases where parts of an international business are able to get up and running again far sooner than others, on the basis that different jurisdictions will take varied approaches to the easing of restrictions. This means alternative arrangements may need to be co-ordinated across multiple jurisdictions within individual organisations, particularly as and when international travel becomes more common place.  

The UK Government will be keeping a close eye on international government announcements to assess the effect that reduction in social distancing and other restrictive measures have in the coming weeks. Equally, employers and businesses should take note of these, albeit ensuring that only country specific guidelines are implemented.

For more information on global lockdown measures and planned easements, see our interactive map.

We remain in uncharted waters. Organisations face a daunting task in getting employees and customers to return to their places of business. It is not just a question of legal compliance, but also one of employee and consumer confidence. Although following up-to-date official guidance may well assist in discharging employers' fundamental duties and manage related legal liabilities, this may not be enough to provide employees or customers the comfort they need to return. Regular engagement and pro-active communication with such key players will be crucial for employers to successfully navigate their way through the current crisis. 

Acknowledgments

Many thanks to JJ Ball for his contribution to this piece.

Please note this briefing does not constitute legal advice and no reliance should be taken upon it. We must also stress that this is a rapidly evolving area and as such this briefing only provides a summary of general guidance available at the time of writing. Please continue to check the latest Government guidance.  Of course, if you require any formal assistance, please do not hesitate to contact us.