The Health and Safety Executive (HSE) have updated the requirements of RIDDOR (The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013) to include exposure to, diagnosis of and death as a result of Covid-19.
This new requirement to report does not apply to members of the public, patients, care home residents or service users that have been exposed to or diagnosed with Covid-19. In short, it applies to occupational exposure only and it is the duty of the ‘responsible person’ (usually the employer or person delegated by the employer) to make a RIDDOR report.
What, as an employer do I need to report?
Confirmation of when a report is required can be found on the HSE website here.
You should only make a report under RIDDOR when one of the following circumstances applies:
an accident or incident at work has, or could have, led to the release or escape of coronavirus (SARS-CoV-2). This must be reported as a dangerous occurrence,
a person at work (a worker) has been diagnosed as having COVID-19 attributed to an occupational exposure to coronavirus. This must be reported as a case of disease,
a worker dies as a result of occupational exposure to coronavirus. This must be reported as a work-related death due to exposure to a biological agent.
The difficulty now faced by employers is when a RIDDOR report is triggered. For instance, is it enough that an employee is diagnosed with Covid-19? What evidence constitutes ‘reasonable evidence’?
The Responsible Person must make a judgment using the information available at the time and on a case by case basis. There must be reasonable evidence linking the nature of the person’s work to becoming exposed to Covid-19.
The HSE have provided the following examples of RIDDOR reportable incidents that constitute a ‘dangerous occurrence’:
a laboratory worker accidentally smashes a vial containing coronavirus on the floor (i.e. outside of a microbiological safety cabinet), leading to people being exposed,
a sample from a COVID-19 patient breaks in transit leading to spillage.
However, the following would not be reportable:
a worker, for example a police officer or prison officer, is deliberately coughed on or spat at by a person of unknown COVID-19 status,
a health or social care worker is providing treatment or care to a patient or service user who is not known to be COVID-19 positive, but the patient or service user subsequently tests positive.
When assessing whether a matter is reportable, the Responsible Person should satisfy themselves that it is more likely then not that the person’s work was the source of exposure to coronavirus. The HSE have confirmed that a person working with the general public (rather than persons known to be infected) is not sufficient evidence to support a case of occupational exposure to Covid-19 and this would not be reportable.
In determining whether there is reasonable evidence to support occupational exposure to Covid-19 in the workplace, Responsible Persons do not need to undertake extensive enquiries. They should consider the information that is available at the time.
Importantly, Responsible Persons are not required to make precautionary reports whereby they do not, at present have enough evidence to reasonably support the occurrence being work-related.
To satisfy whether a ‘diagnosis’ of Covid-19 has been made; the HSE has relaxed its usual requirement for evidence from a registered medical practitioner. In this unprecedented time, many test results are coming back directly from laboratories and Responsible Persons are to consider any official confirmation of a Covid-19 infection as equivalent to a registered practitioner’s diagnosis.
For Covid-19 deaths requiring a RIDDOR report, the death must be caused by an occupational exposure to coronavirus, ie the disease must have been a significant cause of the person’s death. Judgment should be made on the basis of available evidence and it is likely, that a person’s death certificate and other medical evidence will be important in assessing whether the disease was a significant cause of death and whether exposure to that disease was work-related. If the death is reportable, the Responsible Person should notify the enforcing authority by the ‘quickest practicable means without delay’ and they should send a report of the incident within 10 days.
What records do I need to keep?
You can make a RIDDOR report online. Once submitted you will see the message ‘Thank You for submitting your RIDDOR form’ which includes the RIDDOR reference number assigned. The HSE states that a button to download a PDF copy will be visible at this point, allowing you to save and print a copy of the form. If you do not keep a copy of the online form, you must record the date and method of reporting; the date, time and place of the event; personal details of those involved; and a brief description of the nature of the event or disease. These records must be kept for a minimum of 3 years.
What happens if I fail to report?
The requirements of RIDDOR are to be taken seriously. Failure to report a RIDDOR reportable incident is a criminal offence and a breach of s33 of the Health and Safety at Work Act 1974. The consequences of such a breach can be an unlimited fine and/or imprisonment.
Uncertainty and Covid-19
The current crisis is already extremely stressful for employers and employees alike. The Responsible Person at work should make sure that they are up to date with the recent Covid-19 reporting requirements. Guidance can be found at https://www.hse.gov.uk/coronavirus/riddor/riddor-reporting-further-guidance.htm
If you require advice, you can contact Farleys on 0845 287 0939 and speak to a specialist.
I contracted Covid-19 at work – what can I do?
If you have contracted Covid-19 and think this was as a result of exposure in your work-place, you may be able to make a claim. If you require advice, please contact us on 0845 287 0939 and a member of our litigation department will be happy to help you.