Last week, my colleague Fiona Neilson commented on the contradiction and uncertainty around the status of construction sites during the COVID-19 lockdown.
While the Scottish Government remains of the view sites should close, the advice from the UK Government followed the logic of The Construction (Design and Management) Regulations 2015: as long as there is no risk to health, sites are considered safe.
How "no risk of health" is achieved in practical terms remains in question (we have probably all seen recent images of canteen areas crowded with construction workers).
But we now have the benefit of direct guidance from the HSE on the reporting requirements around COVID-19.
Lest there be any doubt, if there is reasonable evidence that someone diagnosed with COVID-19 was likely exposed because of their work that triggers the requirement for a report under RIDDOR (The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013).
It is perhaps easy to imagine a scenario where worker is exposed to COVID-19 while working in, say a lab handling biological agents. Or an example of work-related exposure being a health care professional who is diagnosed with COVID-19 after treating patients who are infected. But is it a stretch to imagine work-related exposure also including construction workers
Would a RIDDOR report be required in those circumstances, and would that result in site closure? Most likely.
So, returning to Fiona's analysis in her blog post — in times of uncertainty, and where clarity is nowhere to be found, we, as lawyers need to go back to basics and read the relevant statute and industry specific regulations. And here we have an alternative route in an example of health and safety regulations settling the political uncertainty and contradiction.
If there is reasonable evidence that someone diagnosed with COVID-19 was likely exposed because of their work you must report this as an exposure to a biological agent using the case of disease report.