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Legal view: Pharmacies must report COVID-19 infections to HSE

"If an employer fails to make a report, they can be prosecuted and face an unlimited fine"

Pharmacy employers must report cases of employees infected with COVID-19 at work to the Health and Safety Executive (HSE), says lawyer Lachlan Nisbet

On August 3, the Pharmacists’ Defence Association (PDA) wrote to the General Pharmaceutical Council (GPhC) to express concern about what appeared to be a failure of community pharmacy employers to report instances of exposure to COVID-19 in the workplace.

The PDA cited a parliamentary answer from July 2, by Conservative peer Baroness Deborah Stedman-Scott, saying that some 1,500 reports had been made to the HSE by hospitals, over 50 reports had been made by GP practices, and four from prisons, but none up to that date from community pharmacies. 

The PDA carried out a survey in July to gauge how its community pharmacy members felt the pandemic had been managed by their employers. Of the 556 respondents, 22% said they had contracted COVID-19. Of those, 40% believed they had caught the virus in their workplace. Fewer than 1% (five respondents) believed that their employer had reported an employee contracting the virus to HSE.

If an employer fails to make a report, they can be prosecuted and face an unlimited fine or imprisonment for breaching the Health and Safety at Work Act 1974.

COVID-19 reporting requirements

Reports of instances of COVID-19 should be made by employers using an online form to the HSE under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR).

RIDDOR places a duty on employers, the self-employed and persons in control of work premises to report serious workplace accidents, occupational diseases and “near-miss” events. The statutory disease reporting form was changed on April 10 to enable identification of COVID-19 reports. Guidance was also issued around this date on reporting requirements for COVID-19 deaths.

The HSE says RIDDOR reports should be made for cases of COVID-19 where a worker has been diagnosed with the illness and there is “reasonable evidence” infection has resulted from workplace exposure. It says that when assessing “reasonable evidence”, consideration needs to be given to:

  • Whether the person’s work activities increase the risk of them being exposed to the virus.
  • Whether there was a specific, identifiable instance of exposure.
  • Whether the person was exposed to the virus without appropriate personal protective equipment (PPE) or social distancing measures in place.

The HSE sets out that for an occupational exposure to be judged as the “likely” cause of infection, it should be “more likely than not” that the person’s work was the source of exposure to the virus, acknowledging that such cases “may not be easy to identify”.

Furthermore, the guidance says: “Work with the general public, as opposed to work with persons known to be infected, is not considered sufficient evidence to indicate that a COVID-19 diagnosis is likely to be attributable to occupational exposure. Such cases do not require a report.”

In contrast to, for instance, those admitted to hospital with a known case of COVID-19, community pharmacies may never be informed that they have come into contact with someone infected with the virus. It is difficult to pinpoint that the exposure has happened as a result of a specific contact in the workplace, which may be a factor when considering the low reporting figures.

GPhC response

The GPhC provided its response by letter on August 19. It identified that since the PDA’s letter at the beginning of that month, there had been another parliamentary answer on August 5 – also from Baroness Stedman-Scott – revealing that six notifications had been made to the HSE and local authorities by community pharmacies between April 10 and July 25.

This number is still very low when the overall reporting figures are taken into account. The latest figures show 9,786 disease reports of COVID-19 were made from April 10 to September 19 across all sectors. The “majority of reports received” are of course from the health and social work sector, including “hospitals, residential homes and day care”, HSE says. These are all settings in which testing is much more likely.

The GPhC said in its letter to the PDA that, through its standards for registered pharmacies, “pharmacy owners are responsible for ensuring the safe and effective provision of pharmacy services…this includes complying with all legal requirements such as health and safety legislation and associated responsibilities”.

HSE acknowledges that the reporting criteria was “not easy to apply in the unusual circumstances presented by the COVID-19 outbreak”.

Lachlan Nisbet is head of regulatory, health and safety at Brabners law firm in Liverpool

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