'COVID-19 Secure' Guidelines Explained

14 May 2020

Author: Ben Johnston
Practice Area: COVID-19 , Health and Safety

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Carson McDowell’s Health and Safety team have considered questions that employers may have regarding the recent ‘COVID-19 Secure’ guidelines.

What are the ‘COVID-19 Secure’ guidelines?

Following the UK government’s announcement of the COVID-19 three-step recovery strategy, ‘Working safely during coronavirus’ guidelines were published to help employers ‘get their businesses back up and running and workplaces operating as safely as possible’. The guidelines were reportedly developed in consultation with approximately 250 businesses, unions, industry leaders as well as the devolved administrations. The guidance can be found online here.

Who do the guidelines apply to?

The guidelines apply to all businesses which are currently permitted to open and covers 8 workplace settings. If a business operates in more than one of these settings, each of the relevant guidelines should be considered.

While the Executive of Northern Ireland have made clear that the country will follow a separate approach to lifting restrictions, the ‘COVID-19 Secure’ guidance states that it ‘should be considered alongside local public health and safety requirements and legislation in Northern Ireland’.

The Department for the Economy recently issued guidance for Northern Ireland businesses, which advises the same general approach to managing COVID-19 but is less detailed than the ‘COVID-19 Secure’ guidance. Employers in Northern Ireland who are currently operating or planning to reopen should therefore ensure they have carefully considered both sets of guidelines in addition to current public health advice.

What do the guidelines require?

In general, the guidelines requires that businesses consider five ‘key points’ for operating or planning to reopen that should be implemented as soon as is practical:

  1. Work from home, if you can
  2. Carry out a COVID-19 risk assessment, in consultation with workers or trade unions
  3. Maintain 2 metres social distancing, wherever possible
  4. Where people cannot be 2 metres apart, manage transmission risk
  5. Reinforcing cleaning processes

The guidance provides a number of practical measures that focus on implementing controls such as hand washing, social distancing and cleaning. It does not advocate the use of PPE specifically for COVID-19, with the exception of clinical settings such as hospitals. The guidance does however suggest that a face covering should be used in enclosed

spaces where social distancing isn’t possible and where there may be contact between individuals who do not normally meet such as on public transport.

Who can carry out a COVID-19 risk assessment?

According to previous guidance from the Health and Safety Executive, you do not necessarily need specific training or qualifications to carry out a risk assessment. An employer can delegate this task but they ‘must appoint someone competent to help you meet your health and safety duties’. A competent person is described as someone with ‘the necessary skills, knowledge and experience to manage health and safety.’

When it comes to assessing risks related to COVID-19, employers should ensure that whoever undertakes the risk assessment is familiar with the ‘COVID-19 Secure’ guidelines and any other existing public health advice.

What do employers need to do with their COVID-19 risk assessment?

As with any risk assessment, employers with more than 5 workers must ensure it is documented. The guidelines also suggests that employers should consider publishing their risk assessment on their website and goes further to state that it expects employers with more than 50 workers to do this.

Businesses should of course aim to identify and control hazards as thoroughly as possible with their initial assessment. However, employers should be aware that they may not get everything right the first time and, as with any risk assessment, the key is to review and update it as often as is necessary. Given that the information and guidance relating to COVID-19 is constantly developing, employers should treat their COVID-19 risk assessment as a living document and expect to review and update it frequently.

What responsibilities do employers have to consult with their employees?

The guidelines emphasise the existing requirement to consult with employees in assessing workplace risk and in developing and reviewing workplace health and safety policies. If employees are members of a recognised trade union, employers must consult with the health and safety representative selected by the trade union. The guidelines advise that if there is not the case, a representative can be nominated by workers.

The Health and Safety (Consultation with Employees) Regulations (Northern Ireland) 1996 permit employers that do not have a health and safety representative selected by a trade union to consult directly with employees as individuals. This is likely more suitable for smaller businesses or businesses that undertake low-risk work.

Is following ‘COVID-19 Secure’ enough to comply with Health and Safety criminal law obligations?

Health and safety obligations are contained in articles 4 and 5 of the Health and Safety at Work (Northern Ireland) Order 1978. These require that employers take all reasonably practicable steps to ensure health, safety and welfare of their workers and anyone else impacted by their operations. Employers are also under a duty to make ‘suitable and sufficient’ risk assessments under the Management of Health and Safety at Work Regulations (Northern Ireland) 2000.

Given that every business is affected in some way by COVID-19, it would not be possible to produce guidelines on every step that employers must take to ensure health and safety. The ‘COVID-19 Secure’ guidance instead provide a basis for employers to go about assessing and controlling risks posed by COVID-19.

Of course, employers are still subject to other health and safety obligations under legislation such as the Fire Safety Regulations (Northern Ireland) 2010 or the Control of Asbestos Regulations (Northern Ireland) 2012. Employers must consider how any changes to their operations as a result of COVID-19 affect these existing obligations.

Employers will invariably be faced with difficult decisions on how to take all reasonably practicable steps against a background of practical and/or financial constraints. Deciding on a course of action will require a balancing exercise,

taking these factors into account along with the potential risk of harm. Depending on the nature of the business, employers may also have to take into account the utility they are providing in managing the pandemic. Health and safety should remain the priority and if suitable controls cannot be put in place for a particular activity, it should be discontinued until it is possible to do so. We would advise that employers document their decision making process.

Employers should consider legal advice on difficult decisions which may have the added benefit of protecting any sensitive deliberations under legal privilege.

Will companies be prosecuted for failing to follow the guidance?

The HSE advised that it will “take a flexible and proportionate account of the risks and challenges arising from the pandemic”. The Chief Executive, Robert Kidd, also confirmed in a statement that the HSENI will provide advice and support to businesses. While this pragmatic approach will be welcomed by employers, breach of health and safety obligations remain a criminal offence. Mr Kidd confirmed in his statement that HSENI “will act to address unsafe working conditions where this is needed.” Businesses who ignore the existing guidance on COVID-19 may therefore expect advice or warnings from their regulators or, if it is considered warranted, enforcement notices or prosecution.

Employers should appreciate that their employees may be very concerned about COVID-19. The Health and Safety Executive for Northern Ireland reported at the beginning of April that they had received an 1800% increase in complaints compared with the previous year. Employers who ignore the guidance or operate without suitable controls may find they are investigated because of complaints from employees.

If you would like any further information please contact Ashleigh Birkett or Ben Johnston from the Health and Safety team at Carson McDowell.

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