Existing health and safety legislation does not require employers to notify the Health and Safety Authority (HSA), as the relevant regulatory body, if an employee contracts COVID-19 in the workplace.
The Safety, Health and Welfare at Work Act 2005 (2005 Act) sets out the key preventive obligations for employers trying to combat accidents and ill-health in the workplace. The 2005 Act defines an accident as an incident “arising out of or in the course of employment which, in the case of a person carrying out work, results in personal injury”. Under the 2005 Act, personal injury includes any injury, disease, disability, occupational illness, impairment of physical or mental condition or death.
The obligations relating to reporting of accidents to the HSA is dealt with in the Safety, Health and Welfare at Work (General Application) (Amendment) (No. 3) Regulations 2016 (2016 Regulations). Under the 2016 Regulations, diseases, occupational illnesses or any impairment of mental condition are not reportable to the HSA.
This position was re-stated by the HSA in May 2020 when it issued guidance for employers and employees about the health risks presented by COVID-19 (available here).
In recent months, the 2016 Regulations have been described as creating a “loophole” for employers whereby they can avoid reporting COVID-19 clusters to the HSA in a bid to avoid adverse publicity. The government has been asked to clarify if further amendments will be made to the existing legislation to include COVID-19 as an occupational illness which must be reported to the HSA. The clarification has been sought on the basis that there is an immediate, exceptional and manifest risk posed to public health by the spread of the virus.
However, the counter-argument that has been put forward is that employers are not in a position to reliably assess a diagnosis of COVID-19 as an occupational illness because an employer cannot definitively ascertain whether the virus was contracted in the workplace or in a community setting.
In addition, concerns have been raised that any legislative amendment could lead to substantial employer liability. Data protection issues have also been raised on the basis that an employer would be obliged to share an employee’s sensitive personal data with the HSA.
Proposed Amendment and HSA Review
The Department of Business, Enterprise and Innovation (DBEI) met with the HSA in August to discuss the matter. The HSA subsequently confirmed that it is conducting a review of the 2016 Regulations to consider if reporting of COVID-19 as an occupational illness should be required. Following this review, it may submit recommendations to the DBEI.
The Irish Congress of Trade Unions has recommended that the legislation is amended to re-introduce an occupational illness notification requirement. Consequently, Sinn Féin recently published the Safety, Health and Welfare at Work (Amendment) Bill 2020 (the 2020 Bill) with the aim of amending the legislation to make incidences of COVID-19 notifiable to the HSA.
Since the beginning of the COVID-19 pandemic, the HSA has been under considerable pressure to carry out an increasing number of pandemic-related workplace inspections. If legislation is introduced to classify COVID-19 as an occupational illness, it would require the HSA to investigate every notification made in those circumstances. Up to September 2020, the HSA had already carried out over 3,700 COVID-19 related inspections since restrictions began to ease in mid-May, while its overall total number of inspections in the same period exceeded 5,000.
The HSA has approximately 67 inspectors dedicated to examining compliance with the COVID-19 Return to Work Safely Protocol (Protocol). Our detailed analysis of the Protocol can be found here. DBEI has advised that 500 additional inspectors, who already hold environmental, agricultural or other workplace inspection responsibilities with other agencies, have been reassigned to the HSA’s inspectorate.
Separately, additional resources have been allocated by the DBEI to help the HSA’s Workplace Contact Unit to provide advice and deal with queries from employers and employees about the Protocol. Additional resources for that unit are also being sourced through the public appointments service. The HSA has advised that it will monitor its inspection resources to ensure that it can continue to meet the increasing demands arising from the pandemic.
If you would like any advice on any of these issues, please contact Nuala Clayton, or your usual William Fry contact.
Contributed by Ruth Fahy