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Is COVID 19 a reportable disease under RIDDOR? Are there any requirements under COSHH connected with COVID 19?

Related Member(s):
Jamas Hodivala QC
Related Practice Area(s):
Competition and Regulation, Employment Law

 The Reporting of Injuries, Disease and Dangerous Occurrences Regulations 2013 sets out a scheme by which various deaths, injuries and occupational diseases which occur in the workplace are to be reported to the Health and Safety Executive (“HSE”). The purpose of the Regulations is to enable the HSE to ascertain where and how risks arise in the workplace and whether they need to be investigated.

Jamas Hodivala QC

Jamas Hodivala QC

With certain limited exceptions, health and safety legislation applies to all “employers” and “undertakings” regardless of where work is conducted. As employers and undertakings have sought to follow Government guidance[1], many people have now been instructed to work from home wherever possible. For these people, the home has now become the “workplace” – health and safety legislation continues to apply to those working from home.

On 17 April 2020, the HSE issued guidance on when COVID 19 cases require reporting under RIDDOR, although this guidance is not particularly clear.

For the purpose of this Q&A, in order to be reportable under RIDDOR the incident must be:

a) A “work-related accident that causes injury”; or
b) an “occupational disease”; or
c) a reportable “dangerous occurrence”.

“Work-related accident that causes injury”

“Work-related” accident means an accident arising out of or in connection with work: regulation 2.

The HSE has published guidance on its website making it clear that an accident at work is not necessarily a “work-related” accident:

RIDDOR only requires a report of an accident if it happens “out of or in connection with work”. The fact that there is an accident at work premises does not, in itself, mean that the accident is work-related – the work activity itself must contribute to the accident. An accident is “work-related” if any of the following play a significant role:

    • The way the work was carried out
    • Any machinery, plant, substances or equipment used for the work or
    • The condition of the site or premises where the accident happened.

Unsanitary conditions on work premises may constitute a “work-related” matter if it is established that the conditions significantly contributed to the contraction of COVID 19. However, further factors must be present before being obliged to report the matter to the HSE pursuant to RIDDOR.

The HSE has published Guidance on RIDDOR (INDG453), which states that an “accident” is:

… a separate, identifiable, unintended incident that causes physical injury. This specifically includes acts of non-consensual violence to people at work.

Regulation 4 provides a list of non-fatal injuries that automatically require reporting, but this list does not include COVID 19. Any injury arising from an accident that incapacitates any person at work from working for more than seven consecutive days also requires reporting. Regulation 5 requires any work-related accident causing injury to any person not at work (i.e. members of the public) to be reported under RIDDOR.

COVID 19 does not represent an “injury” but rather a “disease”. A cough or sneeze from someone who is contagious in the workplace may be a “separate, identifiable, unintended incident” but it is unlikely to cause any “physical injury”. Equally, an unhygienic surface would not amount to an “incident that causes physical injury”. The definition of “accident that causes injury” involves a sudden act or omission resulting in physical injury, as opposed to unhygienic premises.

COVID 19 is unlikely to be reportable under regulations 4 or 5 of RIDDOR.

The HSE guidance explains that where there is medical evidence that a worker has died as a result of exposure to COVID 19 from their work, it should be reported under regulation 6 of RIDDOR as a workplace fatality.

“Occupational disease”

COVID 19 is not listed as an “occupational disease” requiring automatic reporting by regulation 8. Whilst “occupational dermatitis” is listed as a reportable disease (and the overuse of hand sanitisers could cause dermatitis[2]), any such dermatitis would not arise as a result of “the conduct of the person’s work” but as a result of excessive personal hygiene.

Regulation 9 of RIDDOR requires the reporting of any disease attributed to occupational exposure to a “biological agent”. This phrase is defined by reference to regulation 2 of the Control of Substances Hazardous to Human Health Regulations 2002 and includes any micro-organism which may cause infection. Whilst this definition is wide enough to include COVID 19, any diagnosis only requires reporting pursuant to RIDDOR if it follows an “occupational exposure” to the disease.

The HSE Guidance states that a RIDDOR report should be made where a worker has been diagnosed as having COVID 19 and there is reasonable evidence that it was caused by exposure at work. It gives the example of a healthcare professional who is diagnosed with COVID 19 after treating patients with COVID 19. This is a straightforward example, but will not apply to a large number of businesses.

As there are many means by which a person can contract COVID 19, medical evidence will probably be required in order to satisfy an employer that COVID 19 has been caused by or contracted at a person’s work. Where an employer is satisfied that COVID 19 was caused by or contracted at work it should be reported.

 “Dangerous occurrence”

Finally, a “dangerous occurrence” requires reporting under regulation 7. However, regulation 7 defines a “dangerous occurrence” by reference to a long list of specific incidents set out in Schedule 2 of RIDDOR. Those incidents are unlikely to apply to the overwhelming majority of cases involving COVID 19.

An example given in the HSE guidance is when a lab worker accidentally smashes a glass vial containing coronavirus.

Conclusions

Whilst those who are subject to the reporting requirement under RIDDOR must make their own independent evaluation under the regulations, it is highly unlikely that any circumstances in which an employee or other person contracts COVID 19 requires reporting under RIDDOR unless medical evidence demonstrates that it was caused by or contracted at work.


[1] https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19/guidance-for-employers-and-businesses-on-coronavirus-covid-19

[2] https://www.nhs.uk/conditions/contact-dermatitis/causes/