Out-Law Guide | 19 Mar 2020 | 4:40 pm | 4 min. read
Immediate and ongoing risk assessment is required to ensure that people working in or visiting sites are not exposed to risks to their health.
Three overlapping general obligations apply to employers:
Employers must conduct a risk assessment to determine the likelihood and consequences of exposure to the coronavirus, officially Covid-19, associated with their business activities.
What is reasonably practicable depends on the risk to health and safety weighed against the cost - measured in terms of money, time and resources - involved in eliminating the risk. The greater the risk, the more the duty holder is expected to do to address it. The risk of infection of coronavirus following exposure appears to be high. However, the consequences of infection will not be severe for most people.
The context of a global pandemic is also relevant as this may place significant restrictions on materials, equipment and personnel available to implement control measures.
The employer must identify control measures which will eliminate or, where this is not possible, minimise the risks which emerge from the risk assessment.
Risk assessment should take account of the latest guidance from Public Health England and Public Health Scotland, and should be reviewed as advice changes.
The level of risk will vary depending on factors such as travel and the type of work, and particularly the potential for close contact with infected individuals or body fluids. The employer must identify control measures which will eliminate or, where this is not possible, minimise the risks which emerge from the risk assessment.
From a regulatory perspective, Covid-19 is classed as a biological agent under the 2002 Control of Substances Hazardous to Health Regulations. This means that potential exposure through work activities directly involving the virus must be carefully controlled.
The Health and Safety Executive (HSE) has a section on its website dedicated to infections at work, containing useful guidance for employers. The sections on pandemic influenza and severe acute respiratory syndrome (SARS), a coronavirus which emerged in 2003, are likely to be particularly helpful to conducting a risk assessment and identifying appropriate control measures.
Employers also have specific duties under the 1992 Workplace (Health, Safety and Welfare) Regulations. These include duties to:
Again, what is "sufficient" is a matter of interpretation, involving similar considerations to determining what is "reasonably practicable".
Employers are required to consult with their employees about any arrangements put in place to control the risks associated with the coronavirus, and good communication will be essential to ensuring that these measures are effective.
Anyone in control of premises is subject to additional duties to respond to the immediate impact of the coronavirus on users of their premises. These apply to employers in relation to their workplaces, but will also commonly apply to building managers, owners and landlords in relation to common areas or serviced facilities.
Duties under the 1974 Health and Safety at Work Act, include duties to:
The extent of the duties depends on how much control is retained under the lease. Where a whole building has been leased on a full repairing and insuring (FRI) basis, in practice there is very little the landlord will be expected to do. Compliance with health and safety law rests with the tenant.
Where the building has multiple tenants, the landlord or building manager may well have duties in relation to the common areas. A risk assessment should be conducted. Cleaning is a key consideration. The property owner should also put in place a means of sharing information between tenants in different parts of the building. Staffing levels may become an issue in terms of access to the building and maintaining the fire evacuation strategy.
A greater level of duty arises where the property owner has a more active role in managing the premises, for example serviced offices. In this case, the owner should take advice from a competent health and safety professional on how to manage risks within the premises.
From a practical perspective, we have seen facilities owners ensure that visitors to premises are provided with adequate hand washing facilities and increased promises of notices reminding visitors of the importance of regular hand washing with soap and water.
Health and safety law works on the basis of a number of overlapping duties. Tenants will have the same general duties in relation to the parts of the building leased to them. There are also general duties of cooperation and coordination, which require duty holders to work together where their duties overlap.
If it becomes necessary to close premises, official advice should be followed and a cooperative approach adopted. Regulators have powers to prohibit access to premises, for example if continued use poses a risk of serious injury.
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