The construction industry has been hit hard by COVID-19, with large numbers of sites shutting and many workers being furloughed – but over recent weeks we have seen those sites reopening and workers returning. Jon Cooper, a partner, and Ashley Borthwick, a managing associate, from law firm Womble Bond Dickinson consider the new environment for working safely.
At the start of lockdown, the Health and Safety Executive’s (HSE) general approach was to work with employers to ensure compliance and to issue enforcement notices to help secure improvements where appropriate.
However, as the phased return to work has progressed, the general tone has changed. HSE is now making it plain that prosecution will be a consideration in appropriate cases. It has reported over 1,000 spot checks after it resumed inspections at the end of May.
For many in the construction industry, work will need to be done on site or in the office, as it cannot be carried out at home – and that work will now need to be planned and carried out very differently than it used to be, with social distancing and other control measures to reduce the spread of COVID-19 in mind. The HSE will review the adequacy of these working arrangements during random spot checks.
There will also be a significant number of workers who will be able to continue working from home, and if working from home becomes the new normal, resulting in new working arrangements for larger numbers of workers than before lockdown, then we expect the HSE to begin to look more rigorously at what measures employers are taking to ensure the safety of these workers too.
Here’s what construction businesses need to know about the latest guidance:
Social distancing: 2m/1m+ with mitigation
The 2m rule has been relaxed in favour of a 1m plus approach. Employers and employees are now advised to maintain a distance of 2m apart, or 1m with risk mitigation where 2m is not viable. The primary objective remains to maintain a 2m distance where possible.
For the construction industry, the Construction Leadership Council’s Site Operating Guidelines version 5 (last updated on 4 July) provides further industry guidance, including on ways to mitigate risk where maintaining a 2m distance is not possible.
The CITB has also produced a number of Checklists and Forms (under the section Site Operating Procedures/COVID-19 Site Safety Checklists and Forms) – which tie in with the Construction Leadership Council’s latest guidelines mentioned above.
Employers should take into specific consideration any workers who may be particularly vulnerable. This includes “clinically extremely vulnerable” workers who have been advised that they should be shielded by remaining at home and also applies to workers living with someone in the shielded group.
The HSE states that shielded workers cannot return to workplaces before at least 31 July 2020 in Scotland, from 1 August 2020 in England and from 16 August 2020 in Wales when shielding is paused.
Businesses need to put in place controls to reduce the risk to those individuals:
- Taking every possible step to enable working from home
- If working from home is not possible, regularly reviewing your risk assessment and do everything ‘reasonably practicable’ to protect those workers from harm e.g. offering the option of the safest available on-site roles, enabling them to maintain social distancing guidelines (2m, or 1m with risk mitigation where 2m is not viable), and
- If they cannot maintain social distancing, you should carefully assess whether this involves an acceptable level of risk.
PPE – Face masks
The guidance remains that the use of personal protective equipment (PPE), such as face masks and visors, should be a last resort. The guidelines for non-medical workplaces state that the risk of COVID-19 “… needs to be managed through social distancing, hygiene and fixed teams or partnering, not through the use of PPE”.
Employers should stress that the control measures put in place to reduce the spread of COVID-19, such as those relating to hygiene and social distancing, must still be adhered to by those who chose to wear PPE. There is a danger that the use of PPE provides a false sense of security, and may increase the risk of transmission if not used and disposed of appropriately. It is however recognised that some workers feel more comfortable wearing a face mask even if it’s not required by their employer. Employers are encouraged to support these workers by, for example, providing information regarding their safe use and disposal.
It is worth noting also that wearing a face covering is required by law for travelling as a passenger on public transport in England, including travelling on public transport for work, such as for site visits. Commuting from home to your ordinary place of work is not within the remit of health and safety legislation. However, if the travel is required for work purposes, like a site visit, then the employer should provide a face covering/mask if the employee is required to use public transport.
Temperature screening is not a recommendation in the guidelines. However, this practice has been adopted by a number of organisations as an initial warning system, particularly those in the construction sector. Issues to consider are:
- Information relating to temperature screening will need to be processed in accordance with data protection laws. The UK data protection regulator, the ICO, has produced guidance for employers relating to this issue (see here).
- A transparent and fair policy needs to be implemented in relation to who is tested and when to prevent any allegations relating to victimisation and/or discrimination.
- Ensuring that the screening process (including communication of results) is conducted in a way that respects the individual’s privacy.
- Providing training to those conducting the testing and put in place control measures to ensure their safety.
- Be clear on the process to be followed in the event that a temperature test result is disputed.
Working from home – the new norm?
Employers have the same health and safety responsibilities for home workers as for any other workers. HSE has developed its guidance on the issues that employers should consider specifically in relation to home workers (see here) including:
- Keeping in touch with home workers to ensure that they are healthy and safe, have appropriate supervision and do not feel isolated.
- Assessing and managing the risks of using display screen equipment such as computers and laptops. A workstation assessment should be carried out in respect of people working from home on a long-term basis and regularly reviewed.
- Managing work-related stress via, for example, communication, support and providing additional resource.
NHS Test &Trace
The NHS Test & Trace Service provides testing for anyone who has symptoms of COVID-19, traces and alerts “close recent contacts”, and, where necessary, notifies them of the need to self-isolate to help stop the spread of the virus. Guidance has been published for employers (see here). Employers are encouraged to support workers who are required to self-isolate; for example, by not placing pressure on workers to return to work, finding alternative work from home if appropriate (this may include finding an alternative role), and ensuring that the worker is receiving sick pay if working at home is not possible.
Appointing a central point of contact in the business to assist the NHS tracers in the event that a worker tests positive could help to limit the scope of business disruption, especially if strict social distancing measures are being observed.
More guidelines but the general approach remains the same
The official guidelines for the construction industry are available here (Working Safely During Coronavirus (COVID-19) in Construction and Other Outdoor Work, last updated 10 July 2020), and can be summarised as:
- Carry out a COVID-19 risk assessment.
- Develop cleaning, hand washing and hygiene procedures.
- Help people to work from home.
- Maintain 2m social distancing, where possible.
- Where people cannot be 2m apart, manage transmission risk.
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