HSE Regulatory Changes During The Covid-19 Outbreak

As the Covid-19 outbreak continues to impact businesses, the Health and Safety Executive has announced how they are adjusting to address the situation. This article looks at some changes to regulatory requirements related to health monitoring and safety issues, and how the HSE has changed the way it aims to meet its obligations while protecting its workforce during the Covid-19 outbreak.

Employers Staying Open for Business During Covid-19 Outbreak

The current requirements for social distancing in order to try to prevent the spread of Covid-19 are set out in guidance in England, and written in law for certain types of business in Scotland and Wales.

Also, throughout the UK, where a business is allowed to remain open, health and safety law demands that employers take all reasonably practicable steps to minimise risks to the safety of their employees and others affected by the activities of the business.

A joint statement from the HSE, CBI and TUC has called for employers that continue trading to take practical steps to ensure safe working conditions and minimise the threat of workers being exposed to the coronavirus wherever possible, including enabling social distancing. If employers do not comply with the latest Public Health England guidance, consequences range from HSE advice to an enforcement notice, a fine for breaching regulations or a prohibition notice that will shut down some or all activity on site.

The joint statement also encouraged workers to raise any concerns about working conditions first with their employer or trade union. If matters are not resolved locally, workers can approach the Health and Safety Executive or their local authority for help.

CBI Deputy Director-General Josh Hardie has said that keeping staff safe must be the number one priority. TUC General Secretary Frances O’Grady said getting businesses through this crisis and keeping people in their jobs must not come at the cost of safe working conditions.

Health and Medical Surveillance Guidelines

The HSE has issued guidance on health and medical surveillance that allows a proportionate and flexible approach during the current Covid-19 outbreak. The guidance applies to situations where workers are undergoing periodic review under several sets of health & safety regulations. It aims to balance the current constraints due to the pandemic and the critical need to protect the health, welfare and safety of workers. The key points of the guidance are below, though they are subject to review.

The general process is to administer an initial assessment remotely. This assessment can be performed via telephone. If a problem is identified, a doctor must decide whether to see the worker face-to-face and, if so, how to do this safely.

Control of Substances Hazardous to Health Regulations 2002 (COSHH)
The health surveillance assessment required by COSHH Regulation 11 can be conducted as a paper review by administering the appropriate health questionnaire (for example, respiratory) remotely. A full evaluation can be deferred for three months if there are no problems. Workers that do have problems can be assessed further, for example, by telephone. Following this, the doctor can decide whether to see the worker face-to-face and, if so, how to do so safely.

For the medical surveillance required under COSHH Schedule 6, the doctor can use their discretion to determine the content of the review, which can be conducted via telephone. If there are no problems, they can defer a full review for three months. If they identify a problem, the doctor can see the worker face-to-face if they can do it safely.

Control of Asbestos Regulations 2012 (CAR)
For medical surveillance under CAR appointed doctors can establish whether a worker has significant symptoms by using a respiratory symptom questionnaire which can be undertaken remotely. If there are no problems, the doctor can then issue a new certificate for three months. Workers who show evidence of problems can be assessed further. As with the guidance for COSHH, this can be conducted by telephone with the doctor deciding whether to see the worker face-to-face if it can be done safely.

Ionising Radiations Regulations 2017 (IRR)
For the routine medical surveillance of classified persons under IRR, the appointed doctor can conduct a paper review. For high-risk radiation workers where there is a planned face-to-face review, an appointed doctor can perform a telephone consultation and review the worker’s dose records and sickness absence records. If it identifies no health issues, a follow up face-to-face review can be scheduled three months later. If a health problem is identified, the doctor can decide to see the worker face-to-face, if this can be done safely.

Control of Lead at Work Regulations 2002 (CLAW)
To comply with the medical surveillance under CLAW regulations blood tests should continue where workers will continue to be significantly exposed to lead. However, if a worker has had annual blood tests, their blood lead level remains low and stable, and the risk from exposure to lead is unchanged, the blood test can be deferred for three months.

If a worker’s periodic medical assessment is due, the appointed doctor can assess them by telephone. Providing there are no problems the doctor can then schedule the next full review three months after the telephone call. If they identify a problem, they can then decide on whether to see the worker face-to-face and, if so, how to do this safely.

Control of Noise at Work Regulations 2005
It is permissible to defer audiometry testing for three months providing a worker does not identify any relevant problems. If a problem is identified, a review can be undertaken by telephone. Following this, the worker may be seen in person if it can be done safely.

Control of Vibration at Work Regulations 2005
The usual tiered approach to health surveillance still applies. Questionnaires can be administered remotely with problems prompting a review and the reviewing doctor deciding to see the worker in person if they can do this safely.

Inspections Suspended

The Health and Safety Executive has changed their regulatory activity during the Covid-19 situation. Changes include suspending routine inspections of high-risk industries that are not part of the major hazard sectors, including construction and manufacturing. The HSE said it would continue to respond to serious issues, but it has limited contact between individuals to ensure it is following current government advice. Aside from essential tasks, it has halted work that cannot be completed from home.

An HSE spokesperson said that the organisation “remains committed to responding to any serious issues that arise,” and that their “enforcement priorities have not changed.”

The HSE has also stated that the need to comply with occupational health and safety legal requirements remains with duty holders. The HSE is to continue its regulatory oversight of how duty holders are meeting their responsibilities in the context of the current public health risk and based on their available regulatory capacity.

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