Lyndsey Gordon-Webb, Associate Solicitor at Watkins and Gunn, and Head of Disease Litigation, considers whether Covid-19 is an occupational disease.
In the UK the short answer to this is, no – not at the moment!
There is, however, a global Union movement requesting that COVID-19 should be classed as an occupational disease. The reason for this is to safeguard workers and to allow for a mechanism for compensation to be awarded if employers fail to safeguard their employees.
Countries such as Italy, Germany, Canada and South Africa recognise COVID-19 as an occupational disease in certain workplace scenarios. Whilst the right for compensation is not automatic in all circumstances it does reinforce the fact that employers need to ensure that they are doing all that they can to reduce the risk of transmission of the disease between its employees.
As the UK starts to relax the lockdown employers should carry out stringent risk assessments to ensure they are protecting their workers. The risk assessment should identify any hazards which could lead to the spread of COVID-19 and implement measures to reduce this risk.
In the UK there is a duty on employers to report occupational diseases and specified dangerous hazards at work. Presently COVID-19 is not classified as an occupational disease however there are clearly groups of workers who are more at risk, whilst working, than others. In these situations if there is reasonable evidence that someone diagnosed with COVID-19 was likely exposed because of their work, this must be reported via the Health and Safety Executive under RIDDOR.
As workplaces begin to reopen across the UK employers have a duty to do all that they can to reduce the risk of exposure to COVID-19 amongst their workforce. Under the Health and Safety at Work Act 1974, employees must carry out a workplace risk assessment and also take the actions that come from their risk assessment. In addition, in Wales, under regulation 7A of the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020 (the “Coronavirus Regulations”) employers are required to take “all reasonable measures” to ensure that a distance of 2 metres is maintained in the workplace. Precautions will include enabling home working, ensuring good hygiene and cleanliness, and making sure workers can be at least two metres apart at all times. Where these actions do not mitigate the risk, workers will need personal protective equipment. Employers must also enable extremely vulnerable workers in the shielded category to observe NHS advice, and protect other vulnerable or pregnant workers.
It remains to be seen if the UK will treat COVID-19 as an occupational disease but if someone has contracted the disease as a result of their work and an employer has not complied with Act they will be committing a criminal offence and could be prosecuted and, if they taken appropriate steps to assess and reduce the risk, they are likely to have been negligent and liable to a civil claim for compensation. Employers should be aware of this and take steps to protects their employees NOW!