Following our previous advice, the HSE has updated its guidance on employers' reporting obligations in relation to incidents involving COVID-19. A RIDDOR report must be made where:
1. an accident or incident at work has, or could have, led to the release or escape of coronavirus. This must be reported as a dangerous occurrence.
2. a person at work has been diagnosed as having COVID-19 attributable to an occupational exposure to coronavirus. This must be reported as a case of disease.
3. a worker dies as a result of occupational exposure to coronavirus. This must be reported as a work-related death due to exposure to biological agents.
RIDDOR reporting requirements are only relevant to cases of occupational exposure to COVID-19, so incidents relating to members of the public, patients, care home residents or service users need not be reported. Failure to report when required is a criminal offence but reports should not be submitted on a precautionary basis as this could result in unnecessary regulatory scrutiny. Where the decision is taken not to report, records should be kept of the reasons why in case of any future regulator interest.
Note that guidance issued on Test and Trace advises employers to report multiple outbreaks in the workplace to the local health protection team. This does not change an employer's RIDDOR reporting obligations but suggests that if more than one case of COVID-19 is 'associated with' a workplace then the local public health authority will expect to become involved. The guidance does not set out whether 'associated with' means an occupational exposure as opposed to two employees developing symptoms as a result of separate exposures not related to the workplace. We have published a note on Test and Trace here.
All cases that are reported to HSE and Local Authorities are being assessed and investigations initiated where incidents meet the published Incident Selection Criteria.
Reporting a Dangerous Occurrence
A dangerous occurrence is an unintended, specified event which does not necessarily result in a reportable injury, but which has the potential to cause significant harm. If a sample taken from a COVID-19 patient breaks in transit leading to a spillage, this would be reportable. Where a prison officer is deliberately coughed on or spat at by somebody whose COVID-19 status is unknown, a report is not required. Care should be taken to assess each situation on its own facts, particularly in industries such as healthcare and waste management where dangerous occurrences are more likely to happen.
Reporting a Case of Disease
To trigger reporting obligations, there must be official confirmation of COVID-19 (from a doctor or public testing authority). The virus must have been contracted through occupational exposure. Given the uncertainty around COVID-19, this is likely to be difficult to assess. Employers should make a judgment on the available information as to whether or not there is reasonable evidence that a work-related exposure is the likely cause of a confirmed diagnosis. Extensive enquiries are unnecessary but it should be more likely than not that a person's work was the source of exposure as opposed to general societal exposure. Consideration should be given as to the person's work activities in the run up to them developing symptoms and to the control measures in place at the time in the workplace to assess whether relevant public health guidance was being adhered to.
Reporting a Work-related Death due to Exposure to Biological Agents
For a RIDDOR report to be required, there must be reasonable evidence that the death was caused by an occupational exposure to coronavirus. A judgment must be made on the basis of available information and the factors to be considered when assessing whether a COVID-19 death has been caused by an occupational exposure are the same as those above. Additionally, COVID-19 must have been a significant cause of the person's death. This means that medical evidence such as death certificates are likely to be important when considering whether a report is required.
LATEST COVID-19 RIDDOR REPORTING STATISTICS
The HSE has published statistics on COVID -19 RIDDOR reports made by employers to HSE and Local Authorities between 10 April and 11 July 2020:
- 7,971 disease notifications of COVID-19 in workers where occupational exposure was suspected were reported to enforcing authorities over the period, including 119 death notifications.
- Around 80% of all worker reported cases (fatal and non-fatal) during the period were in HSE enforced workplaces.
- Around 75% of reports were recorded by employers against activities in the Health and Social Work sector (including for example hospitals, residential homes and day care), although the actual percentage may be higher due to mis-classification by employers.
- 85% of worker COVID-19 reports received since 10 April were from workplaces in England, 8% in Wales and 7% in Scotland.
- The number of COVID-19 notifications made to enforcing authorities is now at the lowest weekly level since week commencing 12 April.
NEW SELF-ISOLATION GUIDANCE
The Chief Medical Officers for the four home nations have issued a joint statement advising increasing the self-isolation period for those with coronavirus symptoms from 7 days to 10 days in light of emerging evidence that infectiousness can be present in days 7-9. The full statement is here.
For any further support or if you have any questions, please do not hesitate to contact the AG Health & Safety team.
This note represents the law as at 30 July 2020.