By Peter James, partner and head of health & safety, BLM, London (www.blmlaw.com)
The UK continues to grapple with COVID-19 in the workplace, which has never been more apparent than in a care home or care environment.
With guidance and regulation dictated by central government, part of the responsibility for ensur- ing businesses are COVID-secure lies with the Health & Safety Executive (HSE). Following the Government’s announcement on its return to work strategy in May, the HSE stated it had begun proactive inspections, and in July, reiterated that “all sectors and businesses of all sizes are in scope for inspections” to ensure work- places were COVID-secure.
It laid out five steps that busi- nesses should be meeting to meet the latest guidance, including:
• Carrying out a COVID-19 risk assessment in line with HSE guidance
• Developing increased cleaning, hand washing and hygiene procedures • Taking all reasonable steps to help people work from home
• Maintaining social distancing where possible
• Managing transmission risk, where social distancing is not possible
INDUSTRY SPECIFIC CONCERNS
Whilst these steps appear relatively simple, the ever-evolving Government guidance – whether it was a move of social distancing from 2m to 1m+, or enforcing the wearing of face coverings in enclosed spaces – means that some in the care home could understandably struggle to ensure the workplace is meeting the most up-to-date guid- ance. Further, for some it is proving costly to put new procedures in place, only for the guidance to then change once more.
There are also some concerns that the jurisdiction a business has over ensuring COVID guidance is followed has not been properly clarified. Consider staff interactions – how can you ensure social distancing is being followed in off-site smoking areas, for example?
Care has been on the frontline of the pandemic response, and faced myriad clinical, political and professional challenges to say the least. Whilst care homes have largely remained open for staff and residents throughout the pandemic, the way homes safely operate has changed beyond recognition in many situations.
Many carers and care home workers will now be well-versed in increased hygiene measures and use of PPE (if able to access this), and updated COVID-secure policies must be shared with employees and recirculated if updated. It’s particularly important ahead of a possible COVID-19 inspection that staff feel confident in these measures.
HOW CAN I PREPARE FOR A COVID INSPECTION?
So far, the HSE appears to be carrying out the majority of its inspec- tions as random ‘spot checks’, including phone calls and on-site visits. Interestingly there have been cases where the HSE has attended on-site to investigate a reported incident and the inspector has extended their investigation to include a COVID assessment whilst present. Requests have also been made by Inspectors to provide COVID-19 procedures and a copy of the COVID-19 risk assessment prior to the visit taking place.
It’s therefore vital to ensure your business is following COVID-secure guidance and is mitigating necessary risks ahead of time, as you are unlikely to receive notice that an inspection is upcoming. Reasonably practicable measures must be taken – and clearly demonstrated – to minimise the risk of COVID-19 transmission.
Having documentation to evidence the reasonably practicable meas- ures that have been put into place to minimise the risk of COVID-19 transmission is key. Equally, evidence of these measures being commu- nicated to workers and any associated additional training provided is critical to support and protect an organisation’s position A business should therefore document the risk assessment process ( recording any changes made in response to further advice from the government and regulator) and associated actions such as safe systems of work, training and communications so that if questioned at a later date, the organisa- tion can demonstrate the assessment carried out, justify the measures taken and satisfy the HSE that the guidance and developments had been kept under review.
A chronology of compliance set against government and industry wide advice and guidance is critical. Advice and information is continu- ally evolving in respect of COVID-19 so it is important to be able to give clear evidence on what policies and procedures were in place at the time of an incident and be able to draw a comparison with the available information at that time, demonstrate how and when this has been updated since and why, particularly after any new cases of COVID-19 being reported.
As part of the inspection, be prepared to answer questions concern- ing risk assessments, systems of work and training, handling possible outbreaks within the workforce and measures in place to enforce and oversee the new measures. Documents to support this and demonstrate
what is in place should also be pulled together in preparation for this. And remember that the HSE will not just look at what the organisation has implemented at management level; expect inspectors to speak to affected workers to gather evidence of their understanding of the meas- ures and the level of compliance on the ground.
If your business operates within a location affected by local or partial lockdown, be aware that the chances of a spot check are possibly increased. Within recent months, the HSE has put out notices to places including Blackburn, Greater Manchester and Bradford to announce that it will be making sure businesses in the area COVID-secure. Multiple vis- its are increasingly common, to ensure changes are being implemented.
ARE PUNITIVE MEASURES BEING TAKEN?
So far, there has been no documented case where a business has faced punitive action as a result of failing to comply with COVID guid- ance. However, down the line, it is reasonable to expect punitive meas- ures if a business has not got things right.
A COVID inspection is primarily intended to provide affected busi- nesses with guidance, but where breaches are identified, the HSE has stated it will take action, from providing specific advice to halting the unsafe practice or even issuing enforcement notices. A July statement clarified that failure to comply could lead to prosecution.
Currently, HSE fines and penalties in the case of a breach are decided on the basis of the culpability of the organisation, the risk of harm creat- ed and the size of the business based on turnover. This last aspect will be particularly pertinent in the case of future fines for businesses that may have faced a sharp drop in turnover as a result of the pandemic.
The ability to repay a fine is a factor in sentencing decisions, and judges do not hand down fines to financially ruin a company. However, the level of fine is intended to have a real economic impact and send a strong message to both management and shareholders of the need to comply with health and safety legislation. Whether reasonable leniency in punitive measures may be taken, on the basis of financial difficulties and the evolving guidance businesses must keep up with, remains to be seen.
In many ways, COVID inspections must be approached in the same manner as a standard HSE inspection: prepare, prepare, prepare. Whilst you may not be given notice of an impending visit, by following COVID- secure guidance as early as possible, where reasonably practicable, and ensuring it is up-to-date with evolving advice, an organisation can take the first steps to meeting HSE and Government standards.