RIDDOR and COVID-19: When to Report
As an employer, all social housing and care providers will be a “responsible person” for the purposes of the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 “(RIDDOR”). As a “responsible person” you have a duty under RIDDOR to report various work related incidents to the Health and Safety Executive (“HSE”).
What is reportable under RIDDOR?
Under RIDDOR, there are a primarily four types of reportable incident, namely:
- Workplace injuries such as an accident at a workplace that causes harm
- Diseases such as Carpal Tunnel Syndrome from the use of certain tools
- Dangerous occurrences such as scaffolding collapsing at a building site
- Death to workers or non-workers in a workplace caused by a work related accident.
The process for making a report under RIDDOR is fairly straightforward and the responsible person will be able to make the report online via the HSE website. The form will vary slightly depending on the type of incident that is being reported, but it will request basic details about the employer, before gathering the specific information about the kind of incident and when and where it happened. For more serious incidents such as major injuries or fatalities, there is also a telephone line that can be used to make reports.
How does COVID affect RIDDOR reporting?
As the Covid-19 infection rate started to increase dramatically the HSE was concerned that employers, and particularly those in the care sector, would notify a raft of incidence which would then overwhelm them. Consequently, in light of Covid-19, the HSE released guidance on when a workplace incident involving exposure to or death from Covid-19 needs to be reported under RIDDOR. It is clear from the guidelines that the Government is trying to create a high reporting threshold for workplace incidence of Covid-19. As the number of cases continues to rise, and the infection rate remains higher than the Government would like, the HSE is understandably keen to avoid an overwhelming number of unnecessary reports. Although the infection rate may have stabilised somewhat from April and May 2020, this is still a big concern for the HSE in light of the predicted “second wave” over the winter months.
- The important point to note is that there is no requirement under RIDDOR to report incidence of disease or deaths of members of the public, patients, care home residents or service users from Covid-19. There are, nevertheless, three circumstances that the HSE has outlined as scenarios where a report will need to be made under RIDDOR with regard to employees carrying out work related activities. Failure to report under RIDDOR can present a risk of prosecution and significant fines. Therefore employers should carefully consider each individual situation when deciding whether or not to make a report.
A Dangerous Occurrence
An accident or incident at work that causes or could cause the release of SARS-CoV-2 must be reported as a dangerous occurrence.
This will only be applicable if a specific event lead to exposure or the possible exposure of Covid-19. Employers must make a reasonable judgement as to whether the specific circumstances of the event gave rise to such a risk. An example of a reportable dangerous occurrence might be a sample from a patient or service user who has tested positive for Covid-19 breaking in transit leading to spillage. An example of an occurrence that would not be considered reportable would be a health or social care worker providing treatment or care to a patient or service user who is not known to be COVID-19 positive, but the patient or service user subsequently tests positive.
As a result of the HSE guidance we consider that most cases of transmission in the context of care providers are not likely to be reportable. It is often not known whether someone is currently carrying Covid-19, particularly before they have shown any signs of symptoms and even if a test is administered for suspected Covid-19, the results can take several days to be returned.
Cases of disease: Exposure to a Biological Agent
The second circumstance that requires a report under RIDDOR would be a diagnosis of Covid-19, attributed to an occupational exposure to a biological agent. When deciding whether a report is required, the responsible person will need to establish whether there is reasonable evidence to suggest that work related exposure is the likely cause of the disease.
There must be reasonable evidence that links the nature of the persons work to the increased risk of becoming exposed. It can become very hard to establish whether an exposure occurred within work, particularly when the disease is so prevalent within the general population. Some of the factors that the responsible person will need to consider when determining whether a report is necessary will include whether they individual’s work activities increased their risk to exposure and whether or not the person was given the necessary personal protective equipment to keep themselves safe. Whether the employee had access to face coverings, gloves, hand washing facilities and other forms of PPE will need to be considered when determining if a report is necessary.
Employees in the care industry may be at an increased risk of exposure given that there is a high level of prevalence within care homes. With Covid-19 so extensive in the general population however, determining whether or not a report should be made will require careful consideration. Extensive enquiries do not need to be made by an employer. However the decision should be based on the information available at the time.
While in other instances of exposure, written diagnosis from a medical practice is normally required to confirm exposure, due to the prevalence of Covid-19 and the current difficulties seeing GPs and other Medical practitioners, this is not a requirement to report a Covid-19 exposure to the HSE and can therefore be disregarded from an assessment. A simple lab result confirming that an employee has the disease would be sufficient evidence to satisfy this requirement.
Work related deaths
The third type of reportable incident under RIDDOR involves the death of a worker as a result of occupational exposure to a biological agent.
For a death to be reportable there must be reasonable evidence that the death was caused by an occupation exposure to Covid-19. Not only must the person have had Covid-19 at the time of their death, but it must have also been a significant cause of such death. Medical evidence such as a death certificate will be significant in assisting on whether a report is required. It is worth noting again that the RIDDOR reporting obligation only applies to employees of care providers, rather than residents or service users.
Ultimately it is clear that the Government wants to minimise the amount of Covid-19 incidents that need to be reported. Now that the disease is prevalent among the general population, it is going to be very challenging to determine with any certainty that an exposure has occurred as a result of exposure whilst at work. For an incident to be reportable there must be a clear link between the exposure and the work related activity. It would not be enough, for instance, for a person to simply be exposed to Covid-19 while at work. Rather, there must be a specific work related activity that results in infection.
For more information regarding RIDDOR reporting obligations and Covid-19, contact Kathryn Kligerman.