HSE publishes helpful Covid-19 guidance for employers

Health and Safety Executive guidance includes advice on supporting vulnerable workers and first aid cover during the pandemic

Employers have a statutory duty to protect the health, safety and welfare at work of their staff as far as is reasonably practicable. As the Covid-19 pandemic rumbles stubbornly on, employers are continuing to work incredibly hard to ensure their workplaces are Covid-safe. The Health and Safety Executive (HSE) has recently added to its range of useful resources for employers navigating the health and safety implications of Covid-19.

Supporting high-risk, clinically vulnerable and clinically extremely vulnerable staff

Government advice remains that those who can work from home should work from home. Where workers must attend a workplace, employers should ensure that risk assessments are in place, regularly reviewed and robustly implemented.

HSE has published helpful guidance on protecting vulnerable workers during the pandemic. The HSE guidance considers the implications for employers who are dealing with staff who are in a group which has been identified as high risk and staff who are “clinically extremely vulnerable”.  

Higher-risk and clinically vulnerable staff

HSE notes the findings of Public Health England’s important review of disparities in Covid-19 risks and outcomes which found that people in the following groups are at higher risk of being infected by Covid-19 and/or of suffering an adverse outcome if they do:

• older males;
• those with a high body mass index (BMI);
• those with some health conditions such as diabetes; and
• those from some black, Asian or minority ethnicity (BAME) backgrounds.

Although the statistics show that people in these groups are at a comparatively higher risk from Covid-19, employers are not currently advised to put in place additional health and safety controls for such staff. However, employers should ensure that Covid-19 controls for all staff are stringently applied. HSE recommends that employers highlight for all staff the importance of following Covid-safe measures, in part to protect higher-risk staff. Employers should also speak directly to higher-risk staff to ensure they understand the importance of those measures. HSE recommends that managers discuss with staff in these groups any particular concerns they have about safety in the workplace.

Government guidance on social distancing lists the factors which make people “clinically vulnerable” to Covid-19. These include being aged 70 or over, having a chronic condition such as diabetes, taking immune-suppressants, and bring pregnant.

In line with the current guidance for all, clinically vulnerable workers are advised to work from home if they can. If this is not possible, employers should in any event ensure that their Covid-19 controls are robustly applied. The Government recommends that “extra consideration should be given to those people at higher risk” of Covid-19 by employers.

The HSE guidance provides a useful reminder to employers of their health and safety duties to pregnant workers which continue to apply and should take into account the risks of Covid-19 infection.

Clinically extremely vulnerable staff

Those with certain health conditions or who are receiving certain medical treatments which increase the risks of infection were advised to shield until the beginning of August. Public Health England guidance on shielding provides details of those who fall into this “clinically extremely vulnerable” category. 

Where possible, HSE advise that clinically extremely vulnerable workers should work from home. This may mean employers offering alternative roles or duties where this is an option.  If it is not possible to facilitate home-working, clinically extremely vulnerable workers can attend the workplace. In that case, employers must regularly review their risk assessment and “do everything ‘reasonably practicable’ to protect these workers from harm”.

HSE recommends that employers speak with clinically vulnerable staff and those who live with someone in this category to discuss what will be done to make the workplace Covid-secure. Employers should involve these workers in steps being taken to manage risks so that they can share their ideas and provide feedback on whether certain measures will work in practice.

Anecdotal reports suggest that not all people who fall into this group received a shielding letter and employers should not take a failure to provide a shielding letter to mean that a worker is not clinically extremely vulnerable. It is also important to note that employers may have a duty to make reasonable adjustments where policies and practices disadvantage a disabled worker, regardless of whether they are categorised as clinically extremely vulnerable.  Employers should seek advice from medical professionals where necessary to ensure they are informed about any disability and any particular vulnerability to the virus. Please see our previous article, In a world of change, equality law still applies (link here) for more information on the risks of discrimination in the workplace associated with Covid-19.

Although UK-wide shielding advice is now paused, it is reported that shielding could be advised again in those areas designated as Tier 3 (areas where the risk of infection is highest). In that case, it is likely that clinically extremely vulnerable people will be advised not to attend the workplace. In the absence of any equivalent to the Coronavirus Job Retention Scheme, it is likely that such workers who are not able to work from home will be on leave qualifying as sick leave for SSP purposes.

First aid provision and the safety of first aiders

HSE has also recently published guidance on first aid in the workplace during Covid-19 which advises that employers should review their first aid at work needs assessment and include risks to first aiders from Covid-19 in their risk assessment.

The guidance highlights the importance of speaking to your first aiders about the risk assessment and any concerns they may have about delivering first aid at the moment, particularly if they are vulnerable to Covid-19.

Advice is included on minimising the risks of transmission of Covid-19 while delivering first aid, particularly in relation to adequate PPE for first aiders and changes to advice on administering CPR.

Employers are advised to assess whether they have sufficient first aid cover for the workplace and to consider sharing first aid cover with another organisation, but only where those who provide cover have the knowledge, experience and availability relevant to the work environment in question.

Because of backlogs in first aid training, First Aid at Work and Emergency First Aid at Work certificates remain valid until 31 October 2020 or for 6 months from the date of expiry, whichever is the later. Requalification training should be completed by 31 March 2021. However, this extension only applies where an employer can show that it has made every effort to arrange training and continues to have adequate and appropriate equipment, facilities and first aid cover for their work environment.

The risk of health and safety related claims by workers

Where staff refuse to attend for work or leave work because they have health and safety concerns, employers should be aware that they could later face legal claims based on allegations that they were disadvantaged because of that refusal to attend. To be successful in this claim an employee would need to show that they were subject to a detriment or unfairly dismissed for refusing to work in circumstances of danger which they reasonably believed to be serious and imminent. To reduce the risk of such claims, it is important that employers listen to staff concerns, consult on and put in place a thorough risk assessment, and ensure that control measures are rigorously implemented and reviewed.