Do I Have A Claim After Being Exposed To COVID-19 At Work?
We are now, hopefully, over the worst of the pandemic. People will be looking forward to returning to some form of normality in July 2021, nearly 18 months after the first lockdown. But what of those affected by COVID in the workplace? What about those suffering from long COVID after having been exposed to COVID in the workplace, especially those whose workplaces had not provided sufficient measures to ensure the workplace was COVID safe?
As a result of the COVID-19 pandemic, the Government issued advice on keeping workplaces clean and ‘COVID Safe’. This could have been achieved by a reasonably prudent employer reviewing and complying with the Control of Substances Hazardous to Health Regulations (COSHH). A well-prepared, compliant employer would have already had a risk assessment and a plan in place and not needed to be reactive. Sadly, it seems such employers were scarce.
What should the employer have done? Well, nothing new was invented. A biological hazard has always been caught by COSHH. Whilst the regulations may not have envisaged capturing a common cold, cough or the flu as something an employer needed to protect an employee from, a rampant viral pandemic would fall into this category. We already had the laws in place to make sure that employers did all that they reasonably could to protect their employees from COVID infection and the consequences – from minor illness to long COVID and death – it was up to the employer to ensure this was done.
By March 2020, COVID was an obvious hazard that needed to be controlled. The employer should already have had a risk assessment in place, in compliance with COSHH, and this should have taken into account biological hazards. A good, well-thought-out risk assessment would have identified a biological hazard and the steps needed to prevent workers from becoming sick. If there was no risk assessment then they would have had to get one completed very quickly, ensuring it was suitable in the circumstances. This means it would have been entirely bespoke for the job of the worker in that particular workplace.
This was particularly so for frontline NHS staff, paramedics, care workers, cleaners, and those exposed to COVID patients due to their jobs. Here the risk was obvious and the employer would have had experience of such exposures previously, for example, norovirus outbreaks or tuberculosis. Less obvious would have been all other workers who ordinarily would not be exposed to any obvious biological hazard in the course of their work, those in manufacturing, in construction, in shops selling essential items, and other jobs that carried on through the pandemic but could not work at home. It will have been these workers, particularly in smaller businesses, that would have been most at risk if the employers did not have the time and resources to dedicate to creating a safe system of work.
As the risk of COVID was so apparent, certain measures such as shielding were brought in for groups that are more vulnerable. However, workers not classified as vulnerable could also fall very ill and would have been expected to carry on working. These workers all continued to go to work despite the personal risk they had to exposure and infection.
Amongst the measures to make workplaces COVID safe were social distancing, a focus on personal hygiene, increased frequency of cleaning, stronger cleaning chemicals, deep cleans, and preventing employees mixing, especially if any had symptoms. At the start of the pandemic, there was mixed messaging on the wearing of masks, most likely exacerbated by the chronic shortage of PPE in the NHS that would inevitably have been made worse by the public buying up masks had the government-mandated mask-wearing immediately. Mask wearing was eventually mandated, as it rightly should have been.
But what about pay for self-isolating employees who were exhibiting symptoms? If a member of staff was sick, it was reasonably foreseeable that they had COVID and that it would spread if they came into the workplace. Many workers would not have the benefit of contractual sick pay, partners working, or financial security and would have been struggling financially even in the absence of the pandemic. With government help not guaranteed, many employees would have continued to go to work despite having symptoms as their employers would not have paid them. This would have been particularly problematic in the cleaning sector in which many outsourcing companies operate. The onus is on the employer to foresee this issue, and protect the workers from it.
Your employer has duties to protect you and to make sure that you do not get infected with COVID due to exposure at work. Your employer should have:
- Assessed the risk posed to you by COVID in your particular job in your particular workplace (Reg. 6);
- Prevented or controlled your exposure to the risk (Reg. 7);
- Ensured that control measures to achieve protection were properly used (Reg. 8);
- Maintained, examined, and tested the control measures (Reg. 9);
- Monitored your exposure to COVID (Reg. 10);
- Provided health surveillance of you and the workforce (Reg. 11);
- Provided information, instruction, and training relevant to your exposure and what they are doing to control it (Reg. 12).
What does this mean in practice, in the middle of a pandemic? Well, your employer should be carrying out a risk assessment on the measures to control the spread of the virus among the workers. Many of the measures will have been mandated by the government, however, a properly prepared and proactive employer will have been well prepared to protect you. If your employer was not prepared and not proactive they may well have negligently exposed you to COVID.
In order for your employer to comply with COSHH they should be:
- Carrying out a full and proper risk assessment on exactly what your job is, where it is done and the risks COVID may pose to you in that role;
- Preventing you from being exposed to COVID if at all possible, so allowing those in the workforce to work from home, thereby avoiding the issue of a workforce mixing together and making social distancing easier;
- If your exposure to chemicals cannot be avoided it must be controlled, such as providing you with adequate masks and gloves (which also should not contain any substances hazardous to you), safe systems of work, and minimising the exposure to other workers or obvious risks such as public transport, split shifts or even different opening and closing times;
- Any measures in place, such as safe systems of work, masks, and gloves provided should be reviewed to ensure that they are doing the job of protecting you and not failing in any way and the mask is adequate to prevent infection;
- Monitoring your exposure in the workplace and asking for all symptoms to be reported by you and other workers in the workforce;
- Ask if you have any COVID symptoms before coming in to work and when away from work;
- Provide you with information on COVID exposure and symptoms, what you should be doing to protect yourself and how to report issues you have.
Unfortunately, many employers prior to the pandemic had significant failings in their understanding of the application of COSHH. COSHH was key to controlling exposure to COVID at work. The pandemic provided an excellent opportunity for employers to get to grips with this legislation but many have simply rushed out to buy whatever they thought they needed to make workplaces ‘COVID Safe’ and will have failed to carry out all, or even any, of their duties under COSHH. If your employer has failed in their duties to you, and you have developed COVID as a result of exposure at work, you may have a claim against your employer.
If you would like to discuss this further and determine if you have a claim, please contact me directly via kevin.digby@GAsolicitors.com or call 01752 203500. For more information regarding COVID-related legal matters, make sure you give our COVID-19 Legal Hub look.