COVID-19 as a Workplace Hazard (Part 3)

If you’re assessed as having a high “covid age”, chances are you won’t be allowed to return to work

What are the prospects for older workers in ‘the new normal’?

Employers are seeking to return staff from shielding, but can only do this where they can demonstrate that the role is “Covid-secure”. Some employers are requesting their occupational health providers assess staff and advise of their “Covid-age”. Covid-age is a scheme that has been developed by occupational health doctors to stratify employees based on their risk of experiencing severe illness or death as a result of COVID-19.

You’re supposed to start with the person’s actual age and then add additional years for various reasons, e.g. high BMI, ethnicity, gender, medical conditions. This then results in the individual’s Covid-age. There is then a ‘traffic light system‘ that applies to you depending on your Covid-age – green, yellow, orange, red

It is immediately apparent that the higher your age, the more likely you are to fall into a higher risk category.

With any workplace hazard, the employer decides if they are prepared to allow an employee to be exposed. Let’s look at an example of another hazard – flour dust. Flour dust can cause occupational asthma (the development of asthma in an individual who did not previously have any asthma). If an employee is diagnosed with occupational asthma caused by flour dust, the employer is perfectly within its rights to decline to allow the employee back into the workplace if they deem the risk too high. This could, of course, result in an employee losing their employment on medical grounds (so called medical capability) if no other role is available. This is reasonable because the employer has the right to not allow people into the workplace if they believe doing so will result in harm to their health.

In mild cases of occupational asthma caused by flour dust, it may be possible to put some adjustments in place to reduce the risk of exposure – move them to a different area, or provide them with PPE. But in other cases it may be judged that such measures will not reduce the risk of harm sufficiently and so the individual may not be allowed back. If there is a role completely away from flour dust (e.g. in a different area or in an office) then the individual should be redeployed if operationally possible. If not, then they may lose their employment.

If we now look at COVID-19, we’re facing a difficult ethical situation. Some employees will be judged to have a high Covid-age (a high risk of a serious outcome if they get the infection). The employer may decide they are not prepared to allow the individual to return because of this risk. But what happens if the individual still wishes to return to work, and is prepared to accept the risk (which many might argue would still be quite small)? Will the employer accept this, and allow them to return? With conventional workplace hazards, this never happens. Employers do not let their staff return to potentially harmful environments, regardless of whether the individual is prepared to take the risk. Any employer that accepted a signed declaration from their employee stating that they would not hold their employer responsible if they became ill because of work would find themselves in a legally indefensible situation should the employee then become ill.

I have no doubt that employers will err on the side of caution and prevent employees with a high Covid-age back to the workplace. Doesn’t matter how prepared the employee is to take the risk. As long as COVID-19 is regarded as a workplace hazard in the conventional sense, employers will not be able to take the employee’s own view into account. This will lead to individuals who are quite prepared to risk catching Covid losing their employment on medical capability grounds.

The ethics of this situation become even more complicated when you consider the tools that are being used to assess COVID-19 risk. The evidence base is very limited and the tools cannot be relied upon to give a precise indication. But such tools are all that doctors and employers have to work with right now. How else can they assess risk in light of Government requirements to ensure shielding individuals only return to “covid-secure” workplaces?

Also, employers are working to fairly loose Government guidance. As I’ve pointed out previously, COVID-19 is not like asbestos or toxic gases, where you can reliably measure and quantify their presence in the workplace. Employers have no reliable way of knowing if their COVID-19 control measures are working effectively. One employer may decide that a specific type of role is “covid-secure”, but another employer may take a different view (for the same role). There is then the question of how an employer views the degree of risk. Is a risk of death of one in a thousand acceptable to the employer, or not? The risk appetite of employers will vary hugely, again resulting in some workers being allowed to return, and others being excluded, for the same work role and when they’re facing exactly the same risk.

Given that age is the greatest risk factor for a severe outcome from a COVID-19 infection, it is inevitable that any scoring system will place older workers in the highest risk category. I fear that many older workers could be excluded from many common employment roles because employers won’t be prepared to accept the risk. We had the scrapping of the default retirement age a few years ago. We also have longer life expectancy, with many individuals choosing to work for longer. There has been an increased awareness of the health benefits that employment brings, for workers of all ages, including older workers. We also see a lot of workers who need to keep working for financial reasons (e.g. because they’re still paying off mortgages or supporting younger family members). A risk assessment process that necessarily deters employers from keeping on or hiring older workers could be another blow to our hopes of economic recovery.

If many of the scientists are correct, and COVID-19 is something that we need to learn to live with, then at some point it will need to be seen as no different from seasonal flu. No employer would turn down an older job applicant on the grounds that they might catch flu at work and die. There is an acceptance that illnesses such as flu are universal hazards and it is our individual choice as to how we manage the risk. For example, an older worker may opt to ensure they get their flu vaccine every year, and if they are particularly concerned (because they have a lot of underlying health problems), they might opt to no longer work, or they might pick a role with a lower risk of picking up common infections (for example, avoiding busy retail or schools). The only alternative to this approach will be to persist in the view that COVID-19 is a workplace hazard for years to come, in which case many older workers could find themselves excluded from the job market. Does that then mean that workers with a high covid-age should qualify for ill health retirement benefits? Will the Government develop a new class of ill health benefit for this group? We’re down the rabbit hole.

December 2022
Free Speech Union

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