Since the start of the Covid-19 (coronavirus) Pandemic we have been contacted by many employers to ask about their reporting obligations under RIDDOR (The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013) and specifically in relation to whether employers must report incidences where someone working for them catches Covid-19 or their workers give it to someone else.
In April 2020 Alan Millband provided guidance on this topic but it will come as no surprise that the Health and Safety Executive’s (HSE) guidance has moved on since that note was published and this article seeks to update that guidance.
RIDDOR sets out certain work-related injuries, diseases (which includes medical conditions) and dangerous occurrences that must be reported to the Health and Safety Executive (HSE). There is an online procedure for making the report.
The report must be made by the “responsible person”. In the case of a reportable injury, death, dangerous occurrence or disease involving an employee, the employer of that employee is the responsible person. If it involves someone who isn’t an employee – e.g. a self-employed person or a member of the public - the responsible person is whoever was in practical control of the premises at the time.
If someone catches Covid-19 at work or through work that someone else was doing it may be reportable as a dangerous occurrence or as a disease.
To be reportable as a dangerous occurrence there must be a release or escape of the virus and a risk of someone being exposed to it. This is not the case where it is passed from person to person because that doesn’t involve either a ‘release’ or an ‘escape’. This means that there are very few cases in which exposure to Covid-19 is a dangerous occurrence. The obvious example would be where the virus was in a container in a laboratory and someone breaks or damages the container, causing the release or escape of the virus. Each situation must be assessed on a case-by-case basis but the HSE has given generic examples of what they would deem as reportable (and not reportable) as a dangerous occurrence.
The HSE states that the following incidences would not be reportable as a dangerous occurrence:
- Where a worker, such as a police officer or prison officer, is deliberately spat on by a person whose Covid-19 status is unknown; or
- Where a health and social care worker is caring for someone who is not known to be positive for Covid-19 but the service user later tests positive.
Disease, exposure to a biological agent
It is more likely that if Covid-19 is reportable it will be as a disease case. Covid-19 is not categorised as an occupational disease but it is a biological agent, exposure to which is reportable (RIDDOR 2013 regulation 9). The responsible person must decide if there is reasonable evidence i.e. more likely than not, to suggest that the cause of the infection is due to exposure in the workplace. Again, this should be considered on a case-by-case basis but the HSE has suggested that the responsible person should consider the following factors when making their decision:
- Did the person’s work activities increase the risk of them becoming exposed to Covid-19?
- Was there a specific, identifiable incident which led to an increased exposure?
- Did the person’s work bring them directly into contact with a known Covid-19 hazard without effective control measures in place?
So, put simply a covid-19 infection, will be reportable as disease, exposure to a biological agent where the following apply:
- There is a diagnosis of coronavirus – this means the person must have caught the virus. It is not enough that he or she was put at risk of catching it or simply suspects they may have caught it; and
- There must be reasonable evidence to suggest that the likely cause of the infection is exposure in the workplace.
Whereas usually ‘diagnosis’ would mean a diagnosis by a registered medical practitioner, due to high levels of transmission over the course of the pandemic and the fact that people have ready access to laboratory testing for Covid-19 infection, the HSE will accept official confirmation of a positive infection (such as a PCR test result) as an acceptable equivalent to a registered medical practitioner’s diagnosis.
Work-related deaths and Covid-19
For a work-related death to be reportable under RIDDOR, the responsible person must make a judgment that there is reasonable evidence that the death was caused by an occupational exposure to the virus (applying the same principles as for disease reporting). Covid-19 must be a significant cause of the person’s death and medical evidence such as a death certificate should be considered when deciding whether a report is required.
In a nutshell, for Covid-19 cases our advice to clients is that where they are the responsible person –
- If the risk of the exposure to Covid-19 arose through it being released or escaping, it must be reported as a dangerous occurrence.
- On receipt of an official confirmation of a positive Covid-19 infection and where there is reasonable evidence to suggest that the infection was more likely than not due to exposure in the workplace, it should be reported as a disease.
- Where there has been a work-related death, a significant cause of the death is Covid-19 and there is reasonable evidence to suggest the infection was more likely than not due to exposure in the workplace then it should be reported as a work-related death due to occupational exposure to a biological agent.
In either case it should be reported without delay. If the case doesn’t fit 1. 2. or 3. it does not have to be reported.
We have reminded every client that making a RIDDOR report is not in itself an admission of criminal responsibility or civil liability, nor does it make it inevitable that they will be investigated.
If you require any further information or advice please do not hesitate to contact Alan Millband or on 07920 799703, Robert Starr or on 07971 361765 or Donna-Marie Helgeson or on 07776 240250
The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.