COVID-19 is a new risk. Our understanding of it and of the measures that need to be taken to manage it are evolving all the time, as is the guidance issued by the Government, Public Health England (PHE), the Health and Safety Executive (HSE) and industry bodies. The Government in England has not shutdown construction sites. The Scottish Government took a different approach and advised that construction sites should close.

This note sets out some questions to guide health and safety compliance on site.

How should the industry cope with the current climate in relation to the health safety and welfare of those on site?

The Construction Leadership Council (CLC) has said it is "doing its utmost to keep construction sites operational wherever it is practical and safe to do so." It has published guidance designed to protect site workers and try to ensure that consistent measures are in place on sites of all sizes in line with the Government's recommendations on social distancing. Employers and individuals must ensure that they make every effort to comply.

1. Where can I get information/guidance?

The starting points should be the following:

The available guidance is continually changing and it is critical that regular checks should be made to take account of updates.

2. What is the legal position?

Under the Health and Safety at Work etc. Act 1974 (HSWA), and the Management of Health and Safety at Work Regulations 1999, the key duties which employers have under health and safety law are:

  • To ensure, so far as reasonably practicable, that their employees and importantly other people who might be affected by their business (including contractors engaged to carry out construction works), are not exposed by their business to risks to their health, safety and welfare. This duty extends to protecting both physical and mental health.
  • To assess and keep under review, risks arising from what the business does. Risk assessments should be carried out that identify and then evaluate the likelihood that risks will happen and the severity of the consequences if they do. Reasonably practicable methods to eliminate them and, if that is not possible, reduce them should then be identified.

In relation to construction sites, a plan that adheres to PHE and CLC guidance and allows sites to be operated safely needs to be in place to manage the COVID-19 risk without compromising other site risks.

3. What is the position of the HSE?

The HSE are treating COVID-19 as an occupational health issue. On Friday 3 April, the HSE, TUC and CBI issued a joint statement warning that the HSE will take action, including issuing enforcement notices, to employers who are not complying with the Public Health Guidance.

RIDDOR Requirements?

The HSE issued RIDDOR COVID-19 guidance.

The guidance states that employers must only make a report to the HSE where:

  • an unintended incident at work has led to someone's possible or actual exposure to coronavirus. This must be reported as a dangerous occurrence. The example given is of a lab worker accidentally smashing a glass vial containing coronavirus, leading to people being exposed.
  • a worker has been diagnosed as having COVID 19 and there is reasonable evidence that it was caused by exposure at work. This must be reported as a case of disease. The example given is of a health care professional who is diagnosed with COVID-19 after treating patients with COVID-19.
  • a worker dies as a result of occupational exposure to coronavirus and this is confirmed as the likely cause of death by a medical practitioner.

It will be challenging to decide whether to report under RIDDOR in a construction context. It will be important to be able to identify the areas of site and the people with whom a worker with COVID-19 worked.

4. What about the Construction (Design and Management) Regulations 2015 (CDM)?

Under CDM a client's principal duty is to ensure that suitable arrangements are in place to ensure so far as is reasonably practicable, that construction work is carried out without risks to the health and safety of persons affected by the construction project. This is consistent with the duties under HSWA.

A client should therefore seek written confirmation from all contractors that they have done, for example, the following:

  • reviewed and updated all the RAMS relevant to their work in light of COVID-19;
  • that the review considers not only the risks posed by COVID-19, but also the effect that changing work methods as a result of COVID-19, might have on pre-existing risks;
  • that safe working practices are in accordance with the latest Government advice and CLC guidelines;
  • that RAMS will be reviewed and updated regularly as that advice and guidelines changes;
  • that contractors have insisted and obtained written confirmation, that all their sub-contractors will do the same;
  • that they have communicated and trained all employees attending site on both the CLC guidelines and the site rules, including on the CLC guidance on how workers get to and from site; and given them clear instructions that the guidelines and site rules must be followed at all times;
  • that they are taking active steps to audit compliance on the ground with the new safe systems of work; and
  • whether the new working practices will delay contractors ability to complete any work.

Designers and Principal Contractors should do the same. Where there are two or more employers involved in the project, they must cooperate and coordinate their respective health and safety actions. This means working together to share information relating to risk management and having a coordinated approach.

5. How can employers discharge their duties when employees cannot work from home?

Risk means the possibility of danger. COVID-19 affects every aspect of the work environment and the particular risk it poses needs to be considered on a task by task, job by job and individual by individual basis. If working practices have to change to deal with the COVID-19 risk, then it is also essential that any consequential risks are also considered and dealt with.

The current CLC guidance makes it clear that organisations must have in place effective arrangements for monitoring and reviewing their compliance with Government and Industry guidance. Sites should remind their workforce at every opportunity of the local Site Operating Procedures aimed at protecting them, their colleagues, families and the UK population.

Employers have a duty to provide employees with appropriate health and safety surveillance. Therefore, identified/suspected COVID-19 cases need to be recorded, monitored and assessed. This includes those working from home.

6. What instructions should be given to workers about how to decide if they are well enough to come to site?

While the extent to which those with COVID-19, but without symptoms can spread the disease is unclear, we know that those with symptoms do spread it. Employers and workers need to understand and follow the latest PHE guidance on working from home wherever possible, social distancing, persons at risk, persons medically defined as extremely vulnerable, living with persons at risk/vulnerable, when to self-isolate and what to do if someone falls ill.

We have seen examples of temperature testing as workers enter site. This will only help to detect those with symptoms and might have employment consequences (link). The effectiveness of doing this and the risk to the person carrying out the testing needs to be fully assessed.

The current CLC guidance, for example, sets out that where a worker develops a high temperature or persistent cough while at work then they must follow the guidance on self-isolation and not return to work until their period of self-isolation has been completed.

7. What about travelling to site?

Strictly speaking this is not something which an employer needs to worry about, but encouraging workers to think about how they might get to and from work safely will benefit the worker, the business and of course society as a whole.

The current CLC guidance sets out that consideration should be given to, for example, the following:

  • Where possible workers should travel to site alone using their own transport (cars/bicycles);
  • Sharing of vehicles to be kept to a minimum;
  • Providing additional parking arrangements for cars and bicycles;
  • Changing and staggering site hours for workers having to use public transport (away from peak times); and
  • Consider monitoring procedures to ensure compliance and adapt as necessary.

8. How are workers entering and leaving site?

This should be covered by a detailed site specific risk assessment. Can workers get into site without coming into close contact with others? Is there a pinch point at clocking on or registration? Could start and finishing times be staggered? Who actually needs to be on site at any given time?

The current CLC guidance sets out that consideration should be given to, for example, the following:

  • Staggered starts and finish times;
  • Leaving sufficient space between people .For example, holding inductions outside;
  • Reminding workers not to attend if they have symptoms of COVID-19;
  • Cleaning of hands on entering and leaving site;
  • Regular handwashing throughout shift; and
  • Regular cleaning of common contact surfaces.

Consider monitoring procedures to ensure compliance and adapt as necessary.

9. What about rest rooms and welfare facilities?

Again carry out a detailed site specific risk assessment. It is more difficult to maintain safe conditions in these areas. Workers will remove their PPE and will want to sit close to each other. Can social distancing be maintained?

Considerations to take into account should include:

  • Sufficient hand washing facilities (include pop up locations) and supplies of soap, water and sanitiser;
  • Site personnel to have regular breaks to wash hands;
  • Welfare attendant to restrict numbers using toilet facilities at any one time. Avoid use of portable facilities;
  • Staggered and supervised changing and showering facilities;
  • Enhanced cleaning regimes (including common contact surfaces) across site and continuous safe disposal of rubbish;
  • Workers encouraged to bring own food and required to stay on site during staggered break times;
  • Canteens to provide only pre-prepared and packed food; and
  • Social distancing to be strictly enforced with use of supervising attendants where necessary.

Consider monitoring procedures to ensure compliance and adapt as necessary.

10. Should working conditions be adapted?

Possibly but decisions should be based on comprehensive site and task specific risk assessments. It may be that normal working conditions mean that workers are more than 2 metres apart in any event and social distancing can be maintained. Sites and work on them need to be planned to avoid crowding and minimise the risk of spread of infection in accordance with guidance from PHE, HSE and CLC.

Where work cannot be carried out maintaining using a 2 metre distance then consideration will have to be given to whether the activity should continue and, if so, risk assessment(s) will need to be carried out and appropriate control measures put in place to mitigate against the risk of transmission. The CLC guidance provides a hierarchy of controls to be considered where social distancing cannot be maintained.

Fewer people may have an effect on safe operation. Do remaining employees need training and support? Do you need to review your first aid cover, first aider training, type of PPE provided, emergency incident planning and should high-risk work be re-scheduled?

11. What about PPE/RPE?

PPE/RPE can be an effective control measure but it needs to be suitable and sufficient. It may also need to be correctly fitted and consistently worn. For example, in relation to RPE, which face mask type (FFP1, FFP2, FFP3) is most suitable? There may also be issues around supplies and so you may need to prioritise or through risk assessment, determine what other controls and time exposure limitations could be employed to manage the risk.

Wearing inadequate PPE/RPE can also make people think they are protected when they are not. They need to understand this. Re-usable PPE/RPE needs to be properly cleaned after use and not shared between workers. Single use PPE/RPE needs to be disposed of correctly after use.

12. What about other measures?

Government guidelines for example about hand washing, hand sanitizing, face touching and disposal of waste including single-use PPE should be emphasised, encouraged and enforced. Personal hygiene products should be provided.

Everyone should be aware of the symptoms and what to do if they develop these or spot someone else with them. Sites should remind the workforce (e.g. at daily briefings) of the specific control measures necessary to protect them and their co-workers.

13. Should individuals be assessed?

Yes. Anyone with an underlying health condition is at greater risk. There are also reports that older people are more vulnerable and even that men are more vulnerable. Risk assessments should take these factors into account. The risk in employment law terms is unintended discrimination - if you decide that all people over 60 (as an example) should be excluded from the workplace you have to be able to justify your rationale. What evidence did you have and did your approach justify your aims?

14. What if the measures introduced increase risk elsewhere?

Those consequential risks also need to be assessed and managed.

15. How can the changes be enforced?

This may well be the biggest challenge. It takes time to embed different working practices and ensure that they are followed consistently. It will be done most effectively when everyone understands the risk, and the reasons for the changes and then remind each other about how work must be carried out. If, despite everything, new working practices do not work or cannot be followed, then they should be changed or they need to be enforced by using disciplinary action as a means of underlining the severity of the issue.

Risk assessment aside, failure to monitor and enforce can ultimately lead to HSE regulatory enforcement action.

16. What happens next?

Our understanding of the COVID-19 risk continues to evolve. In the coming weeks, government guidance will change, restrictions will either be tightened or relaxed, testing will increase, and we will know more about immunity. You will learn more about how to operate in the new environment.

Risk assessments and safe systems of work need to be reviewed regularly as a result.

If you have any questions then get in touch with Andrew Litchfield and Michael O'Shea.