The COVID-19 public health emergency in Ireland is placing huge strain on all members of society – individuals and families, companies and workers – with Irish households becoming the new workplace for many thousands of people. For those people who still leave their home to travel to work, the journey itself may pose the greatest threat of all.
In this insight we consider how employers can ensure compliance with health and safety obligations by using existing risk assessment tools to address this invisible hazard. If employers do not promptly put in place measures to respond to this crisis, the result could be serious criminal penalties for both organisations and individuals.
Risk assess in a new way
Although the work environment may have utterly changed for most employees, the standard methodology for carrying out risk assessment has not changed. However, while the methodology remains the same, with the public health emergency comes the need to take a new approach to risk assessment, or at least to use it in a new way.
Employers should be warned: if you fail to take adequate consideration of COVID-19 when assessing risk, enforcement action could be taken by the Health and Safety Authority (HSA) if a company suffers an outbreak, with resulting fatalities - at least when things settle down.
Step 1 - Review existing arrangements for risk management in the light of the changed circumstances. Risk assessments may no longer be valid in light of the COVID-19 crisis.
Section 19(3) of the Safety, Health and Welfare at Work Act 2005 (the 2005 Act) requires a risk assessment to be reviewed by the employer where:
there has been a significant change in the matters to which it relates
there is another reason to believe that it is no longer valid
The need to review risk management arrangements when circumstances change it is a key pillar of the 2005 Act and good health and safety practice.
Step 2 - Look at the principles of prevention and ask yourself, does the correct application of these require me to review or re-write my risk assessments?
We are used to asking the questions: 'how can this be done more safely?' and 'can I remove the risk altogether by using a different method of work? However, we are less used to asking the question: should I do the work at all?' Of course, this question may already have been answered for you by the Irish Government, following the implementation of the more restrictive measures from 28 March 2020, but only where work absolutely cannot be done from home. Where this question has not been answered, how do employers answer it?
Innovative solutions are probably now required. On 27 March 2020, An Taoiseach announced that, in light of the ongoing public health emergency, everyone must stay at home until 12 April 2020. Following the announcement, the Government published a list of 'essential service providers'. The question must be: what new ways of working can be devised to ensure safe working in the Covid-19 world? This would include ensuring employees adhere to the Government's restrictive measures on social and commercial activity.
Construction has proved to be a controversial topic. Minister for Health, Simon Harris, has confirmed that construction is not considered an “essential service” for the duration of the crisis, with the exception of the following:
Essential health and related projects relevant to the COVID-19 crisis, and supplies necessary for such projects
Repair/construction of critical road and utility infrastructure
Delivery of emergency services to businesses and homes on an emergency call-out basis in areas such as electrical, plumbing, glazing and roofing
This means that most construction projects must now cease. A grace period is in place until 6pm on Monday, 30 March allowing people to make necessary arrangements to wind down activities in an orderly way. In exceptional circumstances, the Government accepted that some extra time may be needed for a wind down of activity, or necessary for a site to continue to operate at a reduced level of activity, for example, very large construction projects.
Separately, it is unclear whether security personnel are considered to be providing an essential service. Government guidance states that "security activities to assist in the delivery of essential services and the securing of premises closed to the public" are themselves considered to be essential services. However, as construction activity is a non-essential service, it would seem that security activity for the purposes of securing construction sites (which are never open to the public at large) is also non-essential.
Even in these circumstances, work can only continue if a risk assessment shows that the risks associated with COVID-19 can be reduced to a tolerable level, taking account of the prevailing guidance. Employers must still do all that is reasonably practicable to safeguard employees and those affected by its operations.
Now, more than ever, it is important for employers to review their risk assessments in light of the risk posed by COVID-19
Aside from the obvious health risks to employees, failure to do so may put the business at risk of potential criminal liability
If the failings are attributable to senior officers and management, they too may face personal criminal liability under section 80 of the 2005 Act if the offence was committed with their consent, connivance or neglect.