On 15 May 2020, I wrote an article in relation to what healthcare providers need to know about reporting of Covid-19 to the Health and Safety Executive (“HSE”) and considered the guidance ‘RIDDOR reporting of Covid-19’.
On 11 June 2020, the HSE published ‘Further guidance on RIDDOR reporting of Covid-19’ after recognising that the criteria listed in the initial guidance was not easy to apply in the unusual circumstances presented by the coronavirus outbreak. The latest guidance seeks to give employers further detail to help them determine when to make a report under RIDDOR (The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013). My article summarises the main points from the guidance.
What does the guidance say?
In the context of Covid-19, employers must only make a report under RIDDOR if the following occurs:
- A dangerous occurrence
- A case of disease
- A work related fatality
A copy of the latest guidance can be accessed here.
The list of dangerous occurrences set out in Schedule 2 of RIDDOR requires the responsible person (usually employers) to report any accident or incident which results, or could have resulted, in the release or escape of a biological agent likely to cause severe human infection or illness including coronavirus.
In determining whether an incident at work is reportable as a dangerous occurrence, each situation has to be assessed on a case by case basis. The guidance provides examples of reportable incidents and those which are not.
One of the examples given of a reportable incident is in relation to a “lab worker accidentally smashing a glass vial containing coronavirus, leading to people being exposed.”
An example of an incident which the HSE states is not reportable is where, “a health or social care worker is providing treatment or care to a patient or service user who is not known to be COVID-19 positive, but the patient or service user subsequently tests positive.” From this example we can determine that the incident would be reportable if a healthcare worker was providing care or treatment to a service user who is known to be Covid-19 positive.
All dangerous occurrences must be reported under RIDDOR by the quickest practicable means, without delay and a report must be sent within 10 days.
Cases of disease: exposure to a biological agent
Under Regulation 9(b) of RIDDOR, any cases of disease attributed to an occupational exposure to a biological agent are reportable.
In my previous article, I explained that it is difficult to establish with certainty whether or not an employee contracted coronavirus during their work or whether they were exposed to the biological agent outside of work. However, I explained that if an employee has been diagnosed with Covid-19 and there is reasonable evidence that this was caused by exposure to the virus at work, this should be reported in line with the HSE guidance.
The latest HSE guidance helps employers clarify what is meant by ‘reasonable evidence’ of occupational exposure. The guidance states, “when deciding if a report is required, the responsible person must make a judgement, based on the information available, as to whether or not a confirmed diagnosis of COVID-19 is likely to have been caused by an occupational exposure, i.e. whether or not there is reasonable evidence that a work-related exposure is the likely cause of the disease.”
The guidance sets out some factors that could be taken into account when determining whether there is reasonable evidence that a work-related exposure is the likely cause of the disease. The examples set out in the guidance are as follows:
- Whether or not the nature of the person’s work activities increased the risk of them becoming exposed to coronavirus?
- Whether or not there was any specific, identifiable incident that led to an increased risk of exposure?
- Whether or not the person’s work directly brought them into contact with a known coronavirus hazard without effective control measures, as set out in the relevant PHE guidance, in place such as personal protective equipment (PPE) or social distancing.
The guidance states that for an occupational exposure to be judged as the ‘likely’ cause of the disease, “it should be more likely than not that the person’s work was the source of exposure to coronavirus as opposed to general societal exposure.”
The guidance acknowledges that such cases may not be easy to identify when COVID-19 is prevalent in the general population and that employers do not need to conduct extensive enquiries in seeking to determine whether a COVID-19 infection is work-related. The judgement should be made on the basis of the information available. There is no requirement for RIDDOR reports to be submitted on a precautionary basis, where there is no evidence to suggest that occupational exposure was the likely cause of an infection.
Diagnosis of occupational disease
Unlike with usual diagnosis of occupational disease, many cases of COVID-19 are currently being confirmed without a registered medical practitioner’s written diagnosis for example, on the basis of laboratory test results.
The HSE has decided to adopt a pragmatic approach in the unusual circumstances brought about by coronavirus and does not require any test results from a public testing body to be confirmed by a registered medical practitioner before a report is made under RIDDOR.
Work related fatalities
The latest guidance states that for a death to be reportable under RIDDOR there must be reasonable evidence that the death was caused by an occupational exposure to coronavirus. The factors that should be considered when assessing reasonable evidence of occupational exposure are the same as those listed above in relation to cases of disease.
To require a RIDDOR report, the death must be caused by an occupational exposure to coronavirus, that is, for COVID-19 reported deaths, the disease must have been a significant cause of the person’s death. Medical evidence such as death certificates are likely to be an important consideration when determining whether a report is required.
The latest HSE guidance, ‘Further guidance on RIDDOR reporting of Covid-19’ expands on the initial HSE guidance and helpfully explains what is meant by ‘reasonable evidence’. Healthcare providers in their roles as the ‘responsible person’ should consider all incidents on a case by case basis and determine whether or not there is reasonable evidence that a work-related exposure is the likely cause of the worker contracting coronavirus.
If providers have not already done so, now is the time to produce robust risk assessments in relation to managing coronavirus associated risks. This will help to show that providers have taken all ‘reasonably practicable’ steps in relation to assessing and managing risk. Providers should also keep detailed records of any incidents that are reportable under RIDDOR.