When will coronavirus trigger duties to report under RIDDOR?
Incidences of coronavirus exposure (or near-exposure) only require a RIDDOR report where they occur as a result of occupational exposure. Occupational exposure means exposure occurring as a result of a person’s work.
What to report?
There are three categories of report that may be required under RIDDOR in respect of coronavirus. HSE’s latest guidance (available here) sets them out as follows:
- A dangerous occurrence: occurs when an accident or incident at work has, or could have, led to the release or escape of coronavirus (SARS-CoV-2).
- A case of disease: occurs when a worker is diagnosed as having COVID-19 and the diagnosis is attributed to an occupational exposure to coronavirus.
- A work related death due to a biological agent: occurs when a worker dies as a result of occupational exposure to coronavirus.
How to determine if a reportable incident has occurred
In each case, the employer will need to make a decision as to whether there is “reasonable evidence” that a reportable event has occurred.
HSE’s guidance says that an employer, “…does not need to conduct extensive enquiries in seeking to determine whether a COVID-19 infection is work-related” and that “…the judgement should be made on the basis of the information available”. It also states that, “There is no requirement for RIDDOR reports to be submitted 'on a precautionary basis', ie '…where there is no evidence to suggest that occupational exposure was the likely cause of an infection'."
We consider each category of reportable incident in turn below.
A dangerous occurrence
For an incident to be reportable, as a dangerous occurrence, it must have resulted in the release or near-release of coronavirus. HSE examples of reportable and non-reportable incidents are as follow:
Reportable
- A laboratory worker accidentally smashes a vial containing coronavirus on the floor (ie, outside of a microbiological safety cabinet) leading to people being exposed
- A sample from a COVID-19 patient breaks in transit, leading to spillage
Not 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
A case of disease: coronavirus diagnosis attributable to occupational exposure
An employer will first require evidence of a confirmed diagnosis of coronavirus. A diagnosis is confirmed if it is made by a health professional or by positive test result.
Having evidence of a confirmed diagnosis, the responsible person will need to decide if there is reasonable evidence that the employee contracted coronavirus from a work-related activity. HSE provides the following non-exhaustive list of factors an employer might take into account in deciding if a diagnosis of coronavirus is attributable to occupational exposure:
- Whether or not the nature of the person’s work activities increased the risk of them becoming exposed to coronavirus.
- Whether or not there was any specific, identifiable incident that led to an increased risk of exposure.
- Whether or not the person’s work directly brought them into contact with a known coronavirus hazard without effective control measures in place (as set out in the relevant Public Health England guidance), such as personal protective equipment (PPE) or social distancing.
- Cases where a registered medical practitioner has highlighted the significance of work-related factors when communicating a diagnosis of COVID-19: these cases would also be reportable.
We would add to this list instances of "breakouts" ie, multiple cases in a cohort of workers or at a single worksite where there is exposure to coronavirus through work-related activity.
HSE’s guidance says that “..there must be reasonable evidence linking the nature of the person’s work with an increased risk of becoming exposed to coronavirus” and that “…for an occupational exposure to be judged as the likely cause of the disease, it should be more likely than not that the person’s work was the source of exposure to coronavirus as opposed to general societal exposure” so that “general exposure to the public is not enough to require a report under RIDDOR”.
Death due to an occupational exposure to coronavirus
If an employee dies from COVID-19, then the employer will first need to consider if it is more likely than not that the employee contracted coronavirus as a result of an occupational exposure (see above). If the answer to that question is positive, then the employer will need to consider if the coronavirus was a significant cause of death. Evidence as to medical cause of death will likely be determinative of the latter issue.
Making a report
The workplace environments and scenarios that require a RIDDOR report be made are extremely limited. But, if a report is required, then it must be made without delay using the appropriate online form available on HSE’s website.
Where a worker dies from coronavirus and a RIDDOR report has already been submitted in relation to the occupational exposure suspected of causing the death, then HSE guidance says that this can be amended by submitting a duplicate form. All relevant information should be resubmitted with any changes and, in the "Describe what happened" box, the phrase "Amendment to Incident Reference Number {Original Notification No.}" should be inserted, followed by confirmation that the infection has resulted in death.
Review your system of work
A reportable incident may indicate that your control measures are ineffective and so you should review your COVID-19 risk assessment to check if the control measures you have in place remain effective. Even if the control measures are effective, you might consider if there are compliance issues that have caused the incident and if you need to do anything to improve compliance.
If you require any assistance on RIDDOR reporting or health and safety issues generally, please do not hesitate to get in touch.
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