With the publication of the government's roadmap for easing the lockdown in England on Monday 11 May, many employers are making urgent arrangements for employees to return to work.
Section 2 of the Health and Safety at Work Act 1974 (HSWA) requires all employers to put in place systems of work which ensure, so far as is reasonably practicable, that employees may work without risk to their safety. Therefore, identifying, assessing and appropriately controlling COVID-19-related risks will be at the heart of these arrangements.
Regulations passed under HSWA impose an absolute obligation on employers to put in place suitable and sufficient risk assessments for the risks facing their employees. These assessments must be reviewed whenever there is a significant change in risk exposure. The COVID-19 pandemic gives rise to such a change. Therefore, the law requires a new assessment and new control measures to control the risk of infection.
This legal requirement has been reinforced by the government's guidance expressly advising all employers to carry out a "COVID-19 risk assessment".
What will the assessment need to cover?
Risk assessments are, broadly, designed to identify two things: hazards and control measures. The main COVID-19-related hazard is the risk of infection with the virus, though there are likely to be other hazards associated with the effects of lockdown. The most challenging task will be identifying effective and realistic control measures, which for many businesses are likely to be wide-ranging and operationally extremely challenging. They are likely to include measures covering areas such as social distancing, maintaining high standards of hygiene and working from home.
Consider the sector guidance
The government has produced eight sector guidance notes (billed as "COVID-19 Secure guidelines") on reopening workplaces. It will be essential for employers to review these carefully when carrying out their risk assessments. For example, specific guidance has been produced for offices and contact centres, factories, plants and warehouses, shops and branches, and vehicles. The guidelines are high level and largely non-prescriptive. This is because there is no "off-the-shelf" risk assessment that can be dictated by government or the Health and Safety Executive (HSE). Every business will require its own bespoke assessment.
Consult your employees
In its sector guidance, the government asks employers to consult with their workforce when carrying out their COVID-19 risk assessments. There is already a general duty under section 2 HSWA on employers to consult health and safety representatives from the workforce on safety arrangements, although this does not extend to a duty to consult the workforce on individual risk assessments.
In relation to the COVID-19 risk assessment, however, employee consultation is not only in accordance with government guidance, but is also likely to help employers identify control measures which are both practical and supported by the employees. Careful employee consultation may therefore be one of the most effective ways of ensuring that your risk assessment is suitable and sufficient.
Publish your risk assessment
The government has also asked all employers to share their risk assessments with their workforce, and "expects" all employers of more than 50 employees to publish their COVID-19 risk assessment on their website.
Some employers are concerned that this may involve publishing operational details which are confidential, or data which ought to be protected. In practice, however, risk assessments are not likely to contain confidential operational details or (for example) personal data, and if they do they are probably more detailed than they need to be and could be simplified.
Display a COVID-secure notice
The government is also asking businesses to display a COVID-secure notice in their workplace, confirming that they have carried out a COVID-19 risk assessment, have shared it with their workforce and have complied with the government's guidance on managing the risks of COVID-19.