Construction – health & safety obligations amid Coronavirus
Specialist regulatory solicitor, Melissa Toney, and specialist construction solicitor, David Morris, examine the health and safety obligations of the construction industry amid the Coronavirus pandemic.
With TfL and Crossrail shutting down their construction sites so that operatives will not have to travel, thereby reducing the load on public transport and freeing this up for essential workers during the Covid-19 pandemic, and big developers such as ISG, Barratt, Taylor Wimpey, Multiplex and Galliard announcing they are closing sites, pressure on the government to officially declare construction operatives non-essential workers and close down construction sites is growing.
However, the UK’s Civil Engineering Contractors Association (CECA) said it had received government advice that construction in England can continue if it can be done safely and in accordance with Public Health England (PHE) guidance. CECA said; “If for any reason sites and companies are not able to comply with the PHE guidance, then they must cease activities until they can.”
But can companies comply with the guidance? Many operations these days require more than one worker in tight spaces. The health and safety requirements of any construction activity must not be compromised, especially at this time. If an activity cannot be undertaken safely while implementing social distancing or because of a lack of suitably qualified personnel being available, it should not take place.
To help further evaluate their obligations, contractors and site managers are encouraged to be familiar with their health and safety duties under health and safety law. As employers and contractors there are three overlapping general obligations:
- Duty to protect the health, as well as safety, of their employees
- Duty to protect others who may be exposed to health risks as a result of the employer’s activities, including members of the public, service users and sub-contractors
- Duty to manage safety risks in workplaces under the employer’s control.
From a regulatory perspective, Coronavirus is classed as a biological agent under the 2002 Control of Substances Hazardous to Health Regulations. This means that potential exposure through work activities directly involving the virus must be carefully controlled. The Health and Safety Executive (HSE) provides useful guidance for employers.
The level of risk will vary depending on factors such as travel and the type of work, and particularly the potential for close contact with infected individuals or body fluids. Whilst we know that social distancing is absolutely key to safety – when travelling to site, entering and leaving site and also whilst working within sites – it is for each developer and employer to consider its situation and decide next steps. These could include:
- Suspending activity across sites which cannot meet an enhanced risk profile test
- Informing affected sites of decisions and arranging for temporary site closure where required
- Working on plans to ensure that suspended sites have an action plan to be able to safely re-open
- Working with the labour and material supply chain to ensure it has clarity on the position, its effect on work and to initiate planning for future re-opening
For open sites, there is little more that can be done by those in authority than to remind the workforce at every opportunity of the need to stay safe and to do all they can to make that a reality. While there is no official line on the closure of construction sites, all parties should be open in their discussions, record the steps they are taking an ensure they don’t compromise safety at this time.
Coronavirus adds a different dimension to the normal safety requirements on site. Every site will be different. Evaluate the specific risks raised by your project[s] and collaborate with your site team, client and suppliers to find ways to keep the project running – if you have to.
This might involve dramatic changes to how you would normally operate:
Isolating certain teams within the site or staggering work programmes. That in turn might require meetings to be held in a different way (e.g. by conference calls or video conferencing).
Ensuring that there are enough workers to carry out the work safely and in accordance with all relevant health and safety legislation. What is the minimum number of staff required to run the site safely?
Implementing hygiene protocols: are there good washing facilities available including soap, tissues and clean towels? Are facilities cleaned on a regular basis? Monitor all those entering the site and ensure they understand the need for hygiene and to self-isolate in accordance with the latest government and WHO guidelines