In response to the coronavirus (Covid-19) outbreak and to limit its spread and other risks associated with it, on 23 March 2020 the Government imposed restrictive measures. It did this by passing secondary legislation, initially the Health Protection (Coronavirus) Regulations 2020, followed by the Health Protection (Coronavirus Restrictions) (England) Regulations 2020, which revoked the earlier ones. The regulations forced some businesses to close altogether and others to restrict their activities throughout the ‘emergency period’, commonly referred to as the ‘lockdown’. The regulations also restricted the purposes for which people can leave their homes and place limitations on people gathering in public.
Businesses permitted to remain open, fully or partly, during the lockdown, could do so only if they put in place certain control measures, i.e:
- Working at home - employees had to work at home unless it was impossible to do the work from there
- Self-isolation - requiring symptomatic and affected staff to adhere to confinement and segregation requirements
- ‘Social distancing’ - preventing (where possible) workers having to be less than 2 metres apart
- Cleanliness – establishing procedures and facilities to ensure frequent handwashing and the like
- Sickness procedures - to prevent infected and potentially infected persons coming to work or to the workplace
- Information - ensuring all staff made fully aware of the risks and the control measures
On 16 March the Government extended the lockdown by 3 weeks and will review it again on 7 May 2020.
How will lockdown end?
At this point no one can say. There are numerous options. These include easing the lockdown in certain regions and/or for certain businesses; relaxing the restrictions for persons unless through age, medical condition or other vulnerability they remain at significant risk; removing restrictions from persons tested or vaccinated; temporarily relaxing all or some restrictions ( a “see how it goes” approach); or simply ending the lockdown as abruptly as it was introduced.
Plainly the way in which the lockdown ends will influence how each and every business will need to control and manage any on-going coronavirus risks; and it is to be expected that the Government will provide further published Guidance to assist businesses and individuals in that regard. Having said that, inevitably there will be numerous matters that businesses will need to take into consideration in order to comply with their health and safety duties and responsibilities.
Health and Safety compliance
Nothing in the coronavirus regulations or guidance changes other health and safety law. All of it still applies. The overarching duty for businesses remains to ensure the health and safety of employees and ensuring that persons who aren’t employees are not exposed to health and safety risks. Coronavirus infection is a potentially work-related hazard and there is a risk that it may materialise, but other risks must not be overlooked.
Key considerations when restrictions end
Will it mean that coronavirus (Covid-19) infection risks have ended?
Not if the opinions of most senior health experts are anything to go by. It must be assumed that the risk of infection is likely to remain for some considerable time to come. Accordingly, businesses will need to include it as a potential work-related hazard in their risk assessment procedures and documentation and ensure that there are control measures in place.
Can the business re-open?
It may be that a previously closed business can fully or partly re-open, or one that has been partly closed can re-open fully or with fewer restrictions. This will be apparent when the Government announces the details for the lockdown ending/easing process.
Will the working at home restriction continue?
It is possible that the working at home requirement may continue for all or some employees. It could be that persons in vulnerable groups have to remain at home for some time to come.
Businesses will need to abide by whatever the Government directs but given that there is unlikely to be much ‘lead-in’ time they should begin to plan for the practicalities of returning staff to work.
Will the other control measures continue?
Until the Government makes an announcement, it isn’t known what (if any) of the other control measures will apply and to what extent; however, given that the risk of coronavirus infection will almost certainly continue, even though it may diminish, some controls are going to be needed. Most of the current control measures are set out in published Guidance. Though not for sure, it is feasible that there will be some relaxation in the recommended controls and either the existing Guidance will be amended or new Guidance introduced to set out the requirements. Businesses will need to carefully consider any changes, once they are known, and refer to any new or amended Guidance.
Whilst some modifications to social-distancing requirements may be introduced, it is assumed that the cleanliness/hygiene and sickness procedure control measures will remain fit for purpose, more or less as currently drawn, for quite some time to come.
Is it likely that any new control measures will be recommended?
This cannot be ruled out. For example, new control measures could be introduced for when testing becomes more widely available and a vaccine is finally rolled out.
What must be done for staff returning to work?
First, the business will need to know the extent to which it can re-open and which staff will no longer be required to work at home. It will need to wait for the Government’s announcement for that.
Next, before any staff return they must be provided with relevant safety information, which includes the coronavirus (Covid-19) precautions that the business will continue to implement. The information should re-iterate or cross-refer to the sickness procedures and set out the ongoing obligations of the business and individual staff members in that regard.
As soon as they return to work, but before they begin working, staff should be met (individually or collectively subject to on-going social distancing), for the purposes of what one might term coronavirus risk induction training. This is so that they can be informed of the findings of the business’s risk assessment so far as coronavirus is concerned and the control measures (precautions) that are in place. They should also be reminded that all other health and safety procedures remain in place and must be followed.
What precautions may be needed for non-staff?
If the business was one that could remain open during lockdown it may already have procedures to keep customers, visitors, contractors etc. safe. If not it will need to introduce precautions according to the Guidance when the lockdown ends or some of its restrictions relaxed.
It is important to remember that if contractors visit the workplace to carry out work or provide services, the business must make them aware of its coronavirus precautions and ask the contractors to provide details of the coronavirus risk precautions they will take. The two sets of precautions may need to be modified so that they are compatible. If modified they should enhance, not undermine, any precautions.
Can other risk assessments remain unchanged?
Yes but If the business’s coronavirus risk control measures have had a knock-on effect with how other work is carried out, or have resulted in different people carrying out the work, regulation 3(3) of the Management of Health & Safety at Work Regulations 1999 may require the business to review and revise its risk assessment(s) for that other work.
Is there any compliance that had to be postponed because of coronavirus?
Some businesses have genuinely struggled with certain aspects of health and safety compliance during the lockdown. For example, some have been unable to find contractors to carry out safety-critical repairs in the workplace; others have been unable to arrange statutory inspections of lifting equipment.
Once the lockdown ends or the restrictions sufficiently relaxed, these postponed matters must be prioritised and given appropriately urgent attention. To the extent the Health and Safety Executive and other safety authorities may be less inclined to enforcement action during the emergency period, they will revert to type as quickly as possible after it ends.
How will the business be informed of changes to coronavirus health and safety risks?
It is not going to be contacted directly by or on behalf of the Government, that’s for sure - so it will need to look out for official announcements and Guidance frequently. The Gov.UK and HSE websites have invaluable source material, as one would expect.
Howes Percival will continue to monitor all developments and will be publishing guides and comment; and its Health and Safety and Regulatory Team is readily available to advise on the law and legal aspects of compliance against the background of coronavirus (Covid-19) risks, and can provide or arrange for all necessary support for businesses to keep their staff safe.
A webinar on this topic led by the author will be held on 6 May - for more information and to register, please click here.
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