What do we foresee as being the Health & Safety risks post lockdown?
Under the Health and Safety and Welfare Work Act 2005, employers continue to have a duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees, in addition to the health and safety of individuals not within their direct employment but those whom might be effected by their activities.
The Health and Safety Authority ("HSA") has published guidance for employers on minimizing health and safety risks throughout the pandemic. The immediate approach of the HSA has focused on issuing advice and guidance with a series of announced and unannounced inspections of work places taking place to ensure that the Government's Return to Work Safely Protocol is being adhered to. In our view, less serious failures of adhering to the protocol are more likely to be dealt with by way of advice and guidance, however, where employers are connected to repeated failures. or are identified as not having managed the risks appropriately (or at all), the HSA may take action ranging from issuing enforcement notices, to stopping certain work practices until they are made safe, to closing premises and ultimately prosecution.
The HSA has issued guidance on range of areas including:-
- how to undertake a risk assessment with regard to
- notification applications if an employee contracts
- biological agent risk group classification
- work related stress during COVID-19
- temperature screening requirements for workplaces
- under the Protocol
- appointment of a lead worker representative
The HSA is undertaking targeted, proactive, inspection of high risk industries and workplaces including activities in the Healthcare, Construction and Meat Processing Sectors to ensure that businesses are COVID-secure. It is understood that employers are being asked to demonstrate sufficient controls in respect of monitoring, supervising and maintaining social distancing of their employees while in the workplace.
The Health and Safety Executive ("HSE") is contributing to Government guidance as more information is gathered and further scientific evidence secured about COVID-19. Consequently employers depart, at their peril, to the updated and changing guidance. There is now an obligation to appoint a lead worker representative to work with the employer to prevent the spread of COVID-19 in the workplace. This obligation derives under the Return to Work Safely Protocol and obliges the employer to ensure that the lead worker representative receives the necessary training from the employer and that the employer should also have mechanisms in place for regular communication with the lead worker representative and to address any concerns raised.
Employee safety and wellbeing will remain paramount post-COVID and employers must consider not only the risk associated with those who return to the workplace, but also of those who continue to work from home. Home working risks include:-
- unsuitable work stations
- negative impact on stress and mental health or wellbeing
- injuries when undertaking activities unsuitable for
- lone workers
- increased vulnerability to violence (this could be domestic violence at home, amongst staff or consumer to employee)
- accidents or injuries in isolated workplaces
Although much criticism has been levelled that the 2005 Health and Safety Legislation is not specifically suited to tailor for the new reality of the majority of employees working from home, employers continue to have the same health and safety responsibilities to warn homeworkers as they do for those working onsite.
As homeworking becomes more permanent, employers need to consider and assess the workstation setup and display screen equipment used and ensure risk compliance with the underlying regulations. As employers are obliged to update risk assessments when new risks become identified, there is a corresponding obligation on employers to update their Safety Statement which is a unique requirement to Irish employers.
Driving for work
When employees continue to operate work vehicle in lockdown, a return to work is likely to see more of the 'grey fleet' on the roads, as employees look to avoid public transport or are unable/unwilling to take part in car share schemes. Under the governing Health and Safety legislation, an employer's responsibilities may in certain circumstances, include the time when employees are driving at work. Requirements around driving at work are often misunderstood or overlooked by employers and therefore prudent employers ought to ensure that they have the requisite risk assessments undertaken and be certain that they have adequate information, instruction and training provided to employees in respect of vehicle condition, driver working time limits and fatigue etc.
Continue to focus on your key Health and Safety
Understandably employers will worry about ensuring the business is COVID secure. This may result in attention being diverted from other health and safety concerns. Under the primary legislation and indeed under the Government Protocol it is essential that employers ensure any work equipment is regularly inspected and maintained and that staff are fully trained in respect of their health and safety obligations. Any changes to any standard working practices as a consequence of COVID-19 may lead to the need for new risk assessments to be undertaken if new hazards are identified or if there is a fundamental change to a particular work process.
Where employees have been exposed to COVID-19 through work and tested positive, a civil claim may be made against the employer. However, individuals are exposed to COVID-19 in general society and it is likely, for the majority, to be difficult to prove the harm was caused by occupational exposure. In settings such as retail, health and social care provisions, however, the risk of transition may be more prominent and proof of exposure easier to establish. It will be important to assess whether or not there is sufficient evidence available to establish the causal link between any breach of duty of care towards the employee and the resulting positive COVID-19 diagnosis.
It is important not just from a regulatory perspective, that employers take all reasonable practical steps to ensure the health, safety and welfare of their employees but that they also avoid breaching their duty of care in order to reduce the risk of litigation and to align with the culture of the business.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.