It is a well-known principle in health and safety law that employers are under a duty to ensure, so far as reasonably practicable, the health and safety of their employees and non-employees according to the Health and Safety Act 1974.
This is in relation to the risks that are created by its work – not those are not created by work; there may well be some ambiguity in respect of the Coronavirus (COVID-19) as to where the line is drawn between these two elements. It is no surprise therefore that some employers are wondering what they should be doing to protect their workers and indeed, their non-workers.
According to the Health and Safety Executive (HSE) website employers and businesses should follow the guidelines published on the Government website and should be regularly checking the same for updates.
The guidance provided by the Government assists employers and businesses in providing advice to staff on:
- how to help prevent the spread of all respiratory infections including COVID-19
- what to do if someone with suspected, confirmed COVID-19 has been in a workplace setting
- what advice to give to individuals who have travelled to specific areas as outlined by the Chief Medical Officer
- advice for the certification of absence from work resulting from COVID-19.
If you are following this guidance and regularly updating your employees, it is unlikely that you would find yourself at the other end of an investigation by the HSE. Further, in the event of an individual contracting the virus, it could be evidentially difficult for the HSE to prove (beyond reasonable doubt) the source which led to that particular individual coming down with the virus; whether as a result of an employer’s breach of duty or the actions of the employee or non-employee externally. That said, employers must continue to do all that is reasonably practicable to ensure health and safety – all the HSE have to do ultimately is prove that there is a risk and that an employer has failed to manage in these terms.
Businesses should have a strategy in case the outbreak worsens. According to the Government’s plan of action, ‘given that the data are still emerging, we are uncertain of the impact of an outbreak on business. In a stretching scenario, it is possible that up to one-fifth of employees may be absent from work during peak weeks. This may vary for individual businesses’. That said, businesses should be careful not to lose sight of the day-to-day risks that it creates due to the increased focus on COVID-19.