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COVID-19: Safety, Health and Environment Regulatory - HSE's new Guidance: RIDDOR requirements

  • 8 April 2020 8 April 2020
  • UK & Europe

  • Insurance & Reinsurance

On 2 April 2020, the HSE issued new guidance to assist businesses identifying work related instances of COVID-19 that require reporting under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 ("RIDDOR").

COVID-19: Safety, Health and Environment Regulatory - HSE's new Guidance: RIDDOR requirements

Significantly, the regulations themselves have not changed but the HSE has quite properly taken the view the way they should be applied in these extraordinary circumstances should be made clear. As with all cases in a workplace context, businesses should carefully consider whether an incident is RIDDOR reportable as failure to report can have serious ramifications, potentially resulting in criminal investigation and prosecution, and seek legal advice if necessary.

Before reading this article any further, it is also worth noting that the virus is coronavirus (or SARS-CoV-2) and the disease is COVID-19.

What does the HSE's guidance say?

The guidance confirms that a responsible person "must only [our emphasis] make a report under RIDDOR when:

  • An unintended incident at work has led to someone's possible or actual exposure to coronavirus.This must be reported as a dangerous occurrence, or

  • A worker has been diagnosed as having COVID-19 and there is reasonable evidence that it was caused by exposure at work.This must be reported as a case of disease.

  • A worker dies as a result of occupational exposure to coronavirus".

Looking at the above guidance in isolation is not particularly helpful. Instead, to put the guidance in to context, it is essential to look at (i) what the provisions in the regulations require along with (ii) the examples provided by the HSE in its guidance regarding what needs to be reported. Only then is it possible to properly understand what the guidance requires.

Dangerous occurrences

What does RIDDOR say?

The relevant RIDDOR provision requires the following dangerous occurrence to be reported - "any accident or incident which results or could have resulted in the release or escape of a biological agent [which includes coronavirus] likely to cause severe infection or illness".

What is the case example in the guidance?

The HSE's guidance states "if something happens at work which results in (or could result in) the release or escape [our emphasis] of coronavirus you must report this as a dangerous occurrence.  An example of a dangerous occurrence would be a lab worker accidentally smashing a glass vial containing coronavirus, leading to people being exposed".

Cases of disease:  Exposure to a biological agent

What does RIDDOR say?

The HSE's guidance specially identifies regulation 9(b) of RIDDOR which requires "where in relation to a person at work, the responsible person receives a diagnosis of any disease attributed to an occupational exposure to a biological agent" then this must be RIDDOR reported. 

Significantly, the regulations define "diagnosis" as "a registered medical practitioner identification (in writing, where it pertains to an employee) of (a) new symptoms or (b) symptoms which have significantly worsened".

What is the case example in the guidance?

The HSE's guidance states "if there is reasonable evidence that someone diagnosed with COVID-19 was likely exposed because of their work you must report this as an exposure to a biological agent using the case of disease report.  An example of a work related exposure to coronavirus would be a healthcare professional who is diagnosed with COVID-19 after treating patients with COVID-19".

It is significant that both RIDDOR and the HSE's guidance require a "diagnosis", and the guidance also requires there to be "reasonable evidence" the individual has contracted COVID-19 because of occupational exposure to coronavirus.  Since the regulations require any "diagnosis" to be provided by a medical practitioner (in writing where it relates to an employee) we suggest, to assist the company properly concluding whether the individual was "likely exposed because of their work", this "reasonable evidence" should be obtained by asking the medical practitioner to confirm whether they believe COVID-19 was contracted by occupational exposure to coronavirus. In the absence of an expert medical opinion commenting on this, it will be almost impossible in the vast majority of cases to establish where the disease has been caught given that it is highly infectious and has such a long incubation period, (according to the World Health Organization, up to 14 days).[.1]

Work related fatality

What does RIDDOR say?

The HSE's guidance specially identifies regulation 6(2) of RIDDOR which states "Where any person dies as a result of occupational exposure to a biological agent, the responsible person must follow the reporting procedure".

What is the case example in the guidance?

The HSE's guidance states "If someone dies as a result of a work related exposure to coronavirus and this is confirmed as the likely cause of death by a registered medical practitioner then you must report this as soon as is practical and within 10 days of the death".

Any reporting of a death from work-related (ie occupational) exposure to coronavirus will likely follow on from a previous report of contraction of COVID-19 because of occupational exposure to that virus. Either way, it is apparent from the guidance (albeit regulation 6(2) does not specifically require it) that work-related exposure to coronavirus must be confirmed as the likely cause of death by a registered medical practitioner for the reporting requirement to apply.

So what exactly does this guidance require?

It is clear from the HSE's guidance, especially when read in conjunction with the regulations (which it must be), that the HSE is not requiring employers to RIDDOR report all instances where their employees have contracted COVID-19 – to do so would mean the HSE is inundated with RIDDOR reports, the vast majority of which will not relate to work activities.

In our opinion, the HSE is requiring only those exposed directly to coronavirus by their work activities (see the examples above about the smashed vial and also the healthcare professional who is diagnosed with COVID-19 after treating patients with COVID-19) to be RIDDOR reported as a dangerous occurrence, disease or death (which will likely predominantly relate to a healthcare setting).

As ever, businesses and organisations (particularly in the healthcare sector) will need to carefully assess each incident on its own merits.

Authors: Rod Hunt, Partner, Chris Morrison, Partner, and Kate Hargan, Senior Associate.

[1] https://www.who.int/news-room/q-a-detail/q-a-coronaviruses

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