by Alan Devaney, Solicitor in Ronan Daly Jermyn’s employment group.
The Health and Safety Authority (the “HSA”) is the government agency with responsibility to ensure compliance with workplace health and safety (Safety, Health and Welfare at Work Act 2005 (the “2005 Act”)). Its remit now includes ensuring compliance with the Return to Work Safely Protocol (the “Protocol”). In this article, we look at the four key questions an inspector from the HSA will ask during a COVID-19 workplace inspection.
Under the 2005 Act, an inspector has the power to visit workplaces, advise on any shortcomings and enforce the provisions of the 2005 Act. These are addressed by inspectors in one of four ways:
- A Report of Inspection, which may provide a timeline to employers to address any follow-ups needed.
- An Improvement Direction/Notice, which is a legal instruction requiring that certain improvements be carried out within a specific timeframe.
- A Prohibition Notice. This is served on an employer if an inspector believes that there is a serious risk. It directs that specific work activities stop immediately.
- Gather evidence, and prepare a report for the DPP to enable the commencement of proceedings. This includes the possibility of a High Court action to restrict or prohibit work activities at all or part of the workplace.
As regards the Protocol, the HSA have said inspectors will take a collaborative approach with employers and employees and provide advice and support on how to implement the required measures in the workplace. The government indicated at the launch of the Protocol back in May, however, that workplaces not following the advice or cooperating would be shut down.
What are the key questions?
In recent weeks, the HSA has outlined the key questions an inspector will ask during a workplace inspection. The four questions are as follows:
- Has a Covid-19 response plan been prepared?
- Have your employees received Covid-19 induction training?
- Are adequate Covid-19 control measures in place?
- Has a Covid-19 worker representative been appointed?
1. Has a Covid-19 response plan been prepared?
The Protocol sets out that a COVID-19 Response Plan (“the Plan”) must be developed or updated prior to the re-opening of a workplace.
The Plan should address risks associated with that workplace and identify any employees’ individual risk factors, provide for continued working-from-home where necessary, and should include a response plan to deal with a suspected case of COVID-19 in the workplace. It should include measures to address absenteeism rates, which are likely to increase, and also consider implementation of further measures to maintain the two-metre social distancing rule and reduce the spread of COVID-19, such as staggered working patterns and break times, perspex barriers or PPE.
The inspector will ask about employee consultation about the Plan, the system in place for issues to be raised, and whether the finalised Plan was properly communicated to the employees.
The Plan (and all existing policies and procedures) should be updated in accordance with latest public health advice. Emergency plans should take account of physical distancing requirements. Supports should also be put in place for the mental wellbeing of the employees.
The inspector will review Return to Work forms to ensure that all employees have completed these prior to re-opening of the workplace.
Possible follow up questions when assessing your Covid-19 response plan:
- Does it cover the key elements of current public health advice?
- Have you set out what Covid-19 symptoms are? Are your employees aware of those?
- Have you identified vulnerable or high-risk individuals in your workplace?
- Does the response plan set out where the safety signs and posters are displayed?
- Does it cover the key public health requirements of hand hygiene sanitizing, washing facilities and other cleaning procedures?
- Have safety measures been put in place when the two metre social distancing rule cannot be complied with? Examples include perspex glass, barriers and personal protective equipment.
- Are you updating the Plan as public health advice develops, such as the obligatory wearing of facemasks in retail outlets?
- Have you put measures in place at certain pinch points such as entrances and exits, clocking in areas?
- Does it cover what resources are available for employees suffering from stress and anxiety as a result of the whole COVID-19 pandemic?
2. Have your employees received Covid-19 induction training?
The HSA has provided a useful checklist for Induction Training for employees, which can be accessed here. All workers must complete COVID-19 Induction Training before returning to work.
The inspector will look at whether the employer has covered the checklist in training, including factors such as:
- The signs and symptoms of COVID-19;
- How the virus is spread;
- The control measures in place to minimise risk of exposure;
- Demonstrating proper distancing, hygiene and etiquette;
- Information on who might fall into “Higher Risk Groups”;
- What to do if a worker has symptoms at home or at work;
- Any policy updates or updates to risk assessment/safety statement;
- Identifying the Worker Representative(s);
- Explaining any changes in work patterns/break times;
- Recommendations for travelling to and from work.
Sign-in sheets, training records or other evidence of attendance should be produced for the inspector. The inspector may speak with workers during their inspection to establish if they are familiar with the process in the event they are symptomatic at home or at work. The inspector will also speak with the Worker Representative(s).
3. Are adequate Covid-19 control measures in place?
The inspector will look for evidence that measures set out in the Plan have been implemented in the workplace. They will do a walk around of the workplace and check for safety signs and posters in place, ensure that the two metre social distance rule is adhered to, hand sanitizing facilities are available at entrance and exit points to the workplace, and toilets and wash facilitates are available.
The inspector will review the procedure to manage a suspected case and ask the following questions:
- Are there contact-tracing logs in place? How to you know who is in the work place today? If contractors come on site, do you set out how you might track those?
- Is there a designated isolation room available and if not, what arrangements are in place to minimise contact as much as possible.
- What arrangements are in place to minimise contact as much as possible, for example are workers discouraged from traveling together or where that is not possible are workers encouraged to sit in the back seat?
4. Has a Covid-19 worker representative been appointed?
The inspector will ask to speak with the Covid-19 worker representative and enquire about their training and understanding of their role. They may also ask the following:
- Can employees consult with you or ask you questions about COVID-19?
- Are you there as a help to the employer to comply with the responsibilities under the Protocol?
While the Protocol itself is not legally enforceable, its provisions may fall under the enforceable responsibilities of the 2005 Act and other health and safety legislation. The 2005 Act contains numerous express duties for employers in relation to instruction, training, supervision, third parties/visitors, hazard identification, risk assessment, safety statements, representatives and consultation with employees. Any of the above categories of employer duties are arguably captured by the COVID-19 related actions in the Protocol.
In addition to the inspectors’ powers outlined above, employers should also be mindful of other potential actions, such as personal injury claims, an increase in protected disclosures related claims issued by employees in respect of any failures to comply with the Protocol. Employers should prioritise open communication with employees and ensure there is a forum to raise concerns and issues in respect of working on site or at home in the coming months, in particular in respect of employee wellbeing.
Given the ever-changing nature of COVID-19, it is crucial for employers to actively keep updated on current (and official) public health advice, incorporating it into their COVID-19 Response Plan. Training, engagement with employees, familiarity with the individual Response Plan, and updating and implementing changes (documented when and why this occurred), are all positive steps to best manage a HSA inspection, as well as other potential employment related claims.
About the author
Alan Devaney is a solicitor in RDJ’s employment group. He represents employers of all sizes and across all industries, advising on a wide range of employment relation matters including reviewing company policies and procedures, employment related due diligence, redundancies and wrongful and unfair dismissals. Alan has acted in the defence of claims in employment-related proceedings and understands the critical importance of adopting a pragmatic and commercially sensible approach to defending these type of claims.