Legal spotlight April 2020

THE IMPACT of the coronavirus outbreak has brought into sharp focus not only the speed at which a virus can spread around the globe and the inherent difficulties in its containment in an age of global business and leisure travel, but also the consequences for organisations not only on their supply chains but also on their health and safety obligations. With business managers urged to monitor the impact of the coronavirus outbreak on their facilities and supply chains, this should not be done in isolation and continual communications with their health and safety and human resources counterparts is essential. 

Coronavirus 2019-nCoV was first identified in early December 2019. More than 20,000 cases of the virus had been confirmed by early February, predominantly in China although at the time of writing an increasing number of cases were being confirmed in several Asian and European countries as well as the UK, US and Australia.

With the number of deaths attributed to the virus increasing too, the World Health Organisation (WHO) declared the virus a public health emergency of international concern on 30 January, although not a 'pandemic' – a term used to describe an infectious disease which has spread globally – and at the time of writing the WHO has not recommended any trade or travel restrictions.

That said, a number of countries have issued warnings against travel to Hubei and elsewhere in China, as well as restrictions on entry of travellers from China. The UK has advised against all travel to Hubei and all but essential travel to elsewhere in China. Some international commercial airlines have suspended flights to and from China, while the Chinese government has imposed restrictions on movement within China in response to the outbreak.

So where does all this leave the health and safety professional? Employers have clear legal duties to protect the health, as well as safety, of their employees, including those who are particularly at risk for whatever reason. They must also protect others who may be exposed to health risks as a result of their activities including members of the public, service users and contractors. From a regulatory perspective, the new coronavirus is classed as a biological agent under the 2002 Control of Substances Hazardous to Health Regulations. This means that potential exposure through work activities must be carefully controlled.

UK employers should begin by conducting a risk assessment to determine the likelihood and consequences of their exposure to the coronavirus. Their response to that assessment should be measured and proportionate to the risks identified, taking account of the latest guidance from Public Health England and Public Health Scotland, and should be reviewed as advice changes. The level of risk will vary depending on factors such as travel and the type of work, and particularly the potential for close contact with infected individuals or body fluids. The employer must identify control measures which will eliminate or, where this is not possible, minimise the risks which emerge from the risk assessment.

On a practical level, this means that where, as here, the UK government is essentially advising against travel to China, this must be taken on board, and alternatives to travel utilised where reasonably practicable.

Employees should be advised on the risks and how to minimise them, without causing panic, and they should be consulted about any arrangements put in place to control the risks associated with the coronavirus. Good communication will be essential to ensuring that these measures are effective.

Of course, employees also have a duty to take reasonable care of their own health and safety and that of people they work with. That includes cooperating with their employer to enable it to comply with its duties under health and safety legislation. Employees who refuse to cooperate, or who recklessly risk their own health or that of colleagues or customers, may be subject to disciplinary measures.

Well organised businesses have plans and policies in place for crises management and business continuity. Recent events are a reminder that these should address obligations in relation to health and safety too.

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com