Businesses still face a tidal wave of challenges. From face coverings to distancing, most businesses are trying to determine which measures to keep in place. Relying on vaccination as a control measure is also not without it's challenges as it isn't always legally possible to find out if staff or customers are vaccinated. Then we come to the 'pingdemic', as more and more people are having to self isolate due to a notification from the NHS app it is more likely that people are tempted to find ways to stay in work or keep trading. We have answered below some of your key regulatory questions around how you can manage risk for your business.
What should you do about existing control measures?
As most people are both used to and comforted by control measures (like social distancing) being in place, we would not advocate significantly changing your approach, at least until cases return to a much lower level. While the legal requirements may have been diluted or removed, the risk is still present as the spiralling level of cases shows.
As safety law is predicated minimising the risk both employees and others impacted by your business are exposed to, the key question is whether you can document/demonstrate that the risk has reduced from a few weeks ago when full measures were in place. The answer to that question is generally going to be no and in some cases (given the trajectory of case numbers) the risk might actually have increased. If that is the case then how can you justify removing existing control measures?
We know that in many cases businesses are looking to mandate certain measures and the context of your business will be key to determining the best language to use. For example, many retailers are encouraging people to wear face coverings, recognising that they cannot force it. The result is that not only must the policy consider this but you also must contemplate how you communicate it to those impacted.
How much reliance can we place on the vaccine and what does the different positions based on vaccine status mean for safety?
While it is perfectly sensible to have a policy that considers vaccines as one of the measures that impact risk, we would suggest that it is not the sole factor driving decisions. Proving that your staff or visitors are vaccinated is a practical and legal minefield, it's something that is totally outside the control of businesses as vaccines are not privately available and at present it discriminates against the young. For now, we would recommend considering risk based on the worst case scenario of unvaccinated people and therefore your real risk profile is inevitably lower when people are vaccinated.
COVID has shown that the public are resilient and will adopt whatever is necessary to allow them to have a more 'normal' life and most people understand that providing access to vaccine records is a small price to pay to not need to quarantine when travelling. However, how people react if this is expanded much beyond its current scope will remain to be seen. This does leave a practical difficulty for businesses as until it becomes a legal requirement it is going to be very difficult to operate and enforce. One only need look to how certain parts of the population behaved in relation to legal requirements to wear face coverings to see how challenging this might be. As vaccine passports start to be used in more settings beyond for international travel it may be that people will start to become more willing to provide this information, but our experience to date is that without a legal requirement justifying it (as there is for international travel), business will struggle to mandate staff or visitors to premises to provide this information.
The changes to quarantine for travel from amber countries and self isolation following an NHS app ping raise further concerns. If you don’t know with certainty that the employee has been vaccinated you cannot judge if they should or could return sooner. Perhaps implementing work based lateral flow or similar quick tests might be a solution to satisfy that they do not pose a risk to the workforce, but thought is needed on how comfortable businesses feel on allowing those to return.
Has the legal risk profile changed?
Yes, it has adjusted and has got both better and worse. Worse from the perspective that we no longer have the legislation and in some areas a justification for face coverings etc. to be applied. It is also worse in that the potential risk of enforcement action under safety legislation has potentially increased as the removal of control measures may start to make it easier to argue a breach. We anticipate the risk to be greater for local authority rather than HSE enforced sites.
Things have improved in that much of the legislation that gave regulators the powers to enforce COVID legislation have now been repealed. This means that the regulators are left with the safety legislation and notwithstanding the point above, there are still significant challenges with it being applied to COVID risks in most business.
The key question is whether your business or specific work activity increases the risk beyond that in society, only if the answer is yes do you need to be taking significant action to reduce the risk. In most cases the risk posed by the business will be low, however the assessment is obviously different in close contact industries. We also recommend that you manage your legal risk by not RIDDOR reporting unnecessary cases. Contrary to the HSE guidance, you only need to RIDDOR report where you have confirmation in writing from a medical practitioner that the employee got COVID from the workplace, otherwise it is not necessary to report. Reporting where this is not the case will increase your legal risk. You do not need to report in relation to any non-employees.
Want a second opinion?
Throughout COVID we have been supporting clients with finding a strategy to manage their risk. If you have any questions in relation to the time sensitive issues raised in this update, please do not hesitate to get in touch with Dominic Watkins (or your usual DWF contact) for further information and support.