Protection from covid-19 at work: health and safety law is fit for purpose

Dear Editor

Agius and colleague’s opinion on Covid 19 health and safety at work deserves significant thought and discussion(1). It comes at a time that ‘Occupational Medicine’ indicates unparalleled access to the highest levels of National decision making(2&3). The authors report that while existing law may be fit for purpose, there have been serious shortcomings in occupational protection from Covid because legislation has been ignored or not enforced. Although statutory responsibility rests with employers, they indicate failings at a higher level of authority and regulation. Concerns are expressed in relation to both principal cornerstones of occupational health; ‘fitness of the work’ in terms of the hierarchy of controls regarding virus exposure to workers, and ‘fitness for the individual for work’ relating to individual sensitivity/vulnerability of individual workers to severe disease once infected.

The pandemic produced rapid health consequences to people, including workers, with limited information on the full nature of the hazard and its control, as perhaps demonstrated by changing WHO guidance on general mask wearing.(4) With regard to sensitivity/vulnerability, the statutory requirement can be debated, but I suggest the issue had featured little in UK occupational health practice previously(5). There is much therefore to suggest that the early elements of Covid control should be regarded as emergency response. There is precedent in emergency planning that standard legislative systems of protection can be put into temporary abeyance while general emergency interventions achieve some level of health protection, before returning to the normal controls. In some mature elements of emergency planning this has even been recognised in legislation(5). In emergency response intervention the only way to totally avoid adverse health consequences to some individuals caused by the intervention, is not to intervene. Failure to intervene however removes the opportunity to prevent health consequences for the majority, and therefore the implementation of intervention must be based on considerations of balance of risk. Protection of the public and of the workers must be intimately linked, and neither aspect should be considered in isolation. This has clear parallels with pandemic response. Timing is crucial in emergency, and if there is no detailed preplanning, it may well be necessary to implement protection interventions with less than perfect ethical compliance, without the detailed dialogues that would be expected to be required in normal practice. In terms of susceptibility/vulnerability, I congratulated the Scottish Government, for the rapid implementation of a system for individual risk assessment very early in the pandemic, and its subsequent replacement with the more detailed ‘Covid Age’ though both of these tools should be regarded as emergency measures requiring a future rigorous and ethical process, including stakeholder discussions with those in the high risk groups (6&7).

With the scale of the pandemic it is possible to look even further at the context of the early response. Not only was there a major threat to the life of people including workers, there are major threats to significant elements of society and the financial viability and integrity of the UK. Against a backdrop of limited knowledge and resource, massive efforts had to be given to the rapid development of the infrastructure and response systems aimed at protecting people. On a daily basis the media report instances of dire consequence for particular elements of our society or industry which require major support if they are to remain viable. We now see consideration of interventions normally be regarded as health related being used instead to safeguard key elements of society like education. While none of the Nations of the UK have chosen a route of governments of national unity, there is some basis to suggest that there are analogies between the management of the pandemic and involvement in world war. In the war situation, there is implicit danger to the population which cannot be entirely mitigated against, with, in terms of occupation, major differences in risk to the workers in some regiments particularly mobilised in support of the national requirements.

What now? The war is not over, though there is a need to establish a new norm in relation to UK life including Health and Safety protection in the workplace. It seems that we will continue to have to face periods of emergency response into the future, and therefore there is the need to define emergency intervention strategies which would be put in place, with their triggers, when needed. Our knowledge of the virus and its risk in terms of aerosol and droplet has increased and we have new tools like vaccines. In terms of susceptibility/vulnerability, data is being accumulated all the time through initiatives such as QCovid(8). The new norm lies with Government, though there are daily broadsides from both ends of the opinion spectrum demanding further lockdown restriction or much greater relaxations. Ultimately these are considerations of death and ill health from Covid and ill health and death resulting from controls. This requires discussion and consensus. The people affected include all workers, and not just those in healthcare. The Health and Safety requirement must therefore interlock with National policy on public protection. While Health and Safety legislation does have its focus on statutory duties on the employer, much of the requirements here depend on a truly a National response with clear guidelines and requirements with which employers must comply. I would suggest therefore that as a truly UK effort, involving government and the regulators, with the necessary ethical considerations, there is a process looking at the establishment of clear requirements for workforce Health and Safety during the new norm and indeed in future emergency phases. UK legislation in terms of health and safety has for many years been based on considerations of ‘as low as reasonably practicable’; as such it is probably well equipped to take forward this sort of development. (9).

References
1. Agius R, Kloss D, Stewart M & Robertson J. Protection from covid-19 at work: health and safety law is fit for purpose. BMJ 2021;375:n3087
2. President of Society of Occupational Medicine. Christmas message to members 17 December 2021
3. President of Faculty of occupational Medicine. Statement to members on Omicron 30 November 2021
4. World Health Organisation. Mask use in the context of COVID-19. WHO/2019-nCovid/IPC_Masks/3020.5. I December2020.
5. Kalman C J. Management of Vulnerability to Occupational hazards. Occup Med (Lond).2021; 71: 162.
6. Kalman C J . Covid 19 individual susceptibility; health and safety management. Occup Med (Lond)2020; 70:465-466.
7. Kalman C J Discussion on Covid Age. Occup Med (Lond). 2020; 70:686-687
8. qcovid.org
9. Health and safety at Work Act 1974. UK Public General Acts 1974.