This article is written for healthcare providers in their capacity as employers and it will consider employer duties in relation to work related incidents and the reporting of Covid-19 to the Health and Safety Executive (“HSE”).
In the context of Covid-19, employers must only make a report under RIDDOR (The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013) if the following occurs:
- A dangerous occurrence
- A case of disease
- A work related fatality
These areas are expanded on in the HSE guidance on, ‘RIDDOR reporting of COVID-19’, which can be accessed at the following link: https://www.hse.gov.uk/news/riddor-reporting-coronavirus.htm
Dangerous occurrences
A dangerous occurrence in the context of Covid-19 is an incident at work which has led to someone’s possible or actual exposure to coronavirus. The example of a ‘dangerous occurrence’ provided in the HSE guidance relates to a “lab worker accidentally smashing a glass vial containing coronavirus, leading to people being exposed.”
In a healthcare setting such as a care home, a dangerous occurrence might relate to PPE and whether or not there is sufficient and appropriate Personal Protective Equipment (PPE).
There is guidance on the HSE website in relation to fit testing face masks to avoid transmission during the coronavirus outbreak and there is a video advising health workers how to put on and fit check respirators. The HSE guidance makes it clear that a face fit test should be carried out to ensure the respiratory protective equipment (RPE) can protect the wearer.
All dangerous occurrences must be reported under RIDDOR.
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.
As the number of coronavirus cases in the UK increase, it is difficult to establish with certainty whether or not an employee contracted the disease during their work or whether they were exposed to the biological agent outside of work. However, 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, the HSE guidance states that this must be reported.
In the context of a healthcare setting, if a healthcare worker is diagnosed with Covid-19 and there is “reasonable evidence” to indicate that they were exposed to the virus through providing care and treatment to a service user diagnosed with the virus, this should be reported.
Work related fatalities
Similar to cases of disease, if a worker dies as a result of exposure to coronavirus from their work and this is confirmed as the likely cause of death by a registered medical practitioner, then it must be reported as a death as a result of exposure to a biological agent using the ‘case of disease’ report form.
Reports must be made to HSE by the quickest practicable means without delay and send a report of that fatality within 10 days of the incident.
What is the likelihood of HSE enforcement action?
Employers have a legal obligation under the Health and Safety at Work etc. Act 1974 “to ensure, so far as is reasonably practicable, the health, safety and welfare” of all employees at work and although these are unprecedented times, this obligation remains.
In terms of potential enforcement action or prosecution further down the line, it is hard to predict what will happen. The number of coronavirus cases increases on a daily basis and it is difficult to determine whether a person has been exposed to the virus in their place of work or somewhere else. That said, the HSE reporting guidance makes it clear, if there is ‘reasonable evidence’ that a worker has been exposed to and contracts coronavirus as a result of their work, employers are obliged to report this under RIDDOR.
To help protect themselves, employers should produce robust risk assessments in relation to managing risks associated with coronavirus and they should keep detailed records of any incidents that are reportable under RIDDOR.
