The key plank of the government’s advice to employers on reducing the risk of COVID-19 transmission in workplaces is social distancing, currently set at two metres. However, as legal guidance makes clear, this is only the starting point: employers are expected to go well beyond this in their efforts to prevent transmission of COVID-19. A recent legal briefing for employers by Cloisters Chambers states that the priority is to enable work from home, and:
Only if that is not possible should employees be required to go to work and only where every reasonable effort is made to manage transmission risk by reinforcing hygiene and cleaning measures and complying with social distancing rules – keeping 2m from others wherever possible.
The guidance further points out:
Social distancing should not be seen as the panacea. Yes, it is a standard to minimise transmission; but the value of distancing is reduced if two people, for instance, have to work in an enclosed unventilated room where they are just two metres apart. Social distancing is the starting point for precautions. It is not the end point.
Therefore, even if an employer achieves the two metres of social distancing, this in itself is insufficient, and an employer may be expected to go significantly beyond this. The guidance states further:
[I]f social distancing cannot be followed in full, then those operations or activities should only be continued if they are necessary for the business to operate.
But the document cautions:
That does not mean that, if social distancing cannot be maintained and it is necessary for that work to be [under]taken, it is safe for the business to operate.
The advice of Cloisters (one of several relevant pieces) is immediately recognisable to anybody working in occupational health as a very good reflection of the legislation, which applies to all employers and for all manner of workplace hazards. The ultimate decision as to what is reasonable and safe is left to the employer, but the bottom line is that the employer should be able to demonstrate that their measures are achieving the desired outcome – in this case, preventing the transmission of COVID-19 in the workplace.
My concern is that the unique nature of the current COVID-19 situation will pose serious difficulties for employers in discharging their duty of care, and this will in turn force employers to adopt an overly cautious approach that could be a serious constraint on the recovery phase. I am not arguing that legislation should not apply, or that a duty of care does not exist – clearly there is a need for employers to do all that they reasonably can to address COVID-19 in the workplace – but I believe they are not being adequately supported in dealing with this challenge, and the consequences could be severe. There is an urgent need for much clearer leadership from government.
COVID-19 presents a unique challenge to employers in two key respects:
Firstly, unlike other workplace hazards, there is no means by which the employer can assess the effectiveness of its control measures. All other hazards can be assessed in some way (e.g., by measuring the presence of the hazard or observing for a work-related health effect in workers). There is no evidence-based means for employers to monitor for symptoms of COVID-19 among a workforce, and neither is there any way of knowing if a confirmed case was contracted in the workplace. This seriously undermines the employer in an open-ended risk assessment process: they are faced with deciding which measures are appropriate, and to what extent, but with no means of assessing effectiveness.
Secondly, conventional hazards are well documented with much evidence-based guidance available. For COVID-19, this evidence base is lacking, leaving employers with nothing more than very basic government guidance (mainly social distancing and simple hygiene measures). Legal guidance makes it clear that relying on government guidance alone is insufficient, and employers are expected to go beyond these basic measures. But what other measures can they implement? There are lists proposing all sorts of other measures, the vast majority of which have no evidence base to support them. Evidence is vital: untested control measures are often costly and sometimes even harmful, and all control measures have unintended consequences.
I have seen this already with companies rushing to use temperature checks as a means of monitoring for COVID-19 in the workplace – one of the specific duties of care set out in the Control of Substances Hazardous to Health Regulations (COSHH). There is no evidence base for temperature checks of this kind in assessing for COVID-19 in a workplace, but they do result in a breach of social distancing guidance, potentially promoting transmission of the virus. Likewise, improved ventilation is frequently referred to in guidance for employers, but how should this be achieved? Could certain measures result in increased spread of droplets through the introduction of air currents, possibly reducing the effectiveness of social distancing? How might all of these non evidence-based suggestions impact on pre-existing workplace risks – for example, through hampering communication, or deterring workers from seeking assistance when they would normally have done so?
These unique challenges leave employers very poorly equipped to get their staff back to the workplace. Companies are facing severe economic headwinds while at the same time having little choice other than rigidly to adhere to government-advised measures, of which two metres social distancing is likely to be by far the most damaging. Even if this can be achieved, employers are advised that this is likely to be insufficient in demonstrating compliance. There are high levels of anxiety among employees – with or without medical vulnerabilities – and they require careful assessment and return-to-work planning. About half of all employees over the age of fifty have at least one underlying medical condition, and many of these will need specific risk assessments by healthcare professionals before returning. Many others require reassurance because of medically vulnerable household members.
Social distancing requires a massive reduction in building occupancy. For some workplaces, building occupancy has been cut to below 20% of normal capacity, but the average is about 30% in my experience. Many businesses need to compromise social distancing to allow for maintenance or engineering tasks. Every activity involving co-workers at less than two metres needs a specific risk assessment (with the potential for PPE and the full requirements of the PPE Regulations). Employee anxiety is high, with frequent confusion and dispute over local rules for working and PPE. The woes of the hospitality sector are all too familiar, but there are many businesses that will be unable to continue operating in any capacity because of social distancing.
Government must urgently review the requirement for two metres social distancing. It is particularly distressing for employers to consider the number of other countries already accepting a one metre policy. A continuation at two metres can surely only be justified if there is compelling evidence that a one metre policy leads to an increase in transmission of the virus. If this evidence is absent, then there can be no possible justification for failing to reduce the distance to one metre.
There need to be urgent efforts on the part of government to take steps to support the national return-to-work effort. Ministers must understand that public health advisors and scientists will play no role in the practicalities of how businesses across the UK navigate the recovery. There needs to be national guidance for employers that goes well beyond that currently provided. Specific pronouncements on the likely duties arising under legislation are required in order to clarify reasonable expectations, which alone could significantly speed up a return to work and avoid unnecessary cost. These could include:
- Clarifying the requirement for health surveillance. There is no evidence-based approach available, so employers could be advised that this duty under COSHH is unlikely to apply in most workplaces.
- Clarification that control measures should be limited to a few clear but evidence-based steps. These should be specified in detail, not left for employers to work out for themselves.
- Clarification that, for most employers, monitoring for COVID-19 in the workforce will not be possible – this would only drive employers towards unverified test kits and other unreliable measures which will provide misleading information.
- A reduction of social distancing to one metre in the absence of compelling evidence from other countries that this would lead to an increase in transmission.
The end of lockdown will only signal the beginning of the next phase of this crisis. The potential for COVID-19 workplace measures to continue to exert drag on the economic recovery is clear, and a failure of government to adequately address the support that employers need can only prolong the damage to businesses and livelihoods. Without this leadership, businesses and organisations of all types will continue to wallow in confusion, while all the while being vilified by the press. There will always need to be some degree of local interpretation of guidance or legislation, but fundamental misunderstandings need leadership, otherwise the resulting confusion and chaos will only serve to prolong the damage to the economy and to livelihoods.
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