Today (11 November) is not just Remembrance Day. It is the day when a little-noticed change to the regulations around the Health and Social Care Act will come into force that, OH operations specialist Ian Houston argues, could end up delivering access to occupational health for every employee in the UK as a legal requirement. But has the government even recognised what it has potentially set in motion?
The year is 1943, prime minister Winston Churchill’s plan for post-war Britain is broadcast to the nation on 21 March outlining a vision for a new ‘National Health Service’. Fast forward to 23 March 2020, and prime minister Boris Johnson is addressing the nation, outlining in grim terms the need for a national lockdown to protect the very same NHS from Covid-19. The ‘unknown unknowns’ variable – that phrase made famous by former US defence secretary Donald Rumsfeld – is now reality to humanity through a ‘new normal’ of abnormal.
We have of course all just lived through what happened next. The first national lockdown (March to July 2020) witnessing all non-essential business closed, followed by a second lockdown (November to December 2020), a third (January to March 2021) with various tier systems evaluated over the 12 months coupled with various legislation introduced by Parliament. But did prime minister Boris Johnson and his advisors understand the road their subsequent legislative introductions were taking them/us down? I would argue not, and this article intends to outline why.
The introduction of the Coronavirus Act 2020, with its wide scope of legislation in separation from the lockdown laws in England, would change everything again in July 2021 (House of Commons, 2021), with England moving to step four of its road plan to recovery. The Health Protection (Coronavirus, Restrictions) (England) (No 3) Regulations 2020 required employers to risk assess premises and employees in managing risk to public health, summarily backed by section 2 of the Health and Safety at Work Act 1974 (HSWA) (Health and Safety Executive, 2020) designed to protect employees under their employer’s ‘duty of care’ responsibilities.
Expanding access to OH
Public bodies and private organisations coming to terms with this ever-changing landscape of legislation could not imagine what was about to transpire in elevating the fight against health inequalities across the UK’s 32.43 million employees (ONS, 2021). In an article dated 14 September 2021, Professor David Michaels, an epidemiologist at George Washington University and former assistant Secretary for Labor for Occupational Safety and Health Administration, the US regulator, said: “This is a worldwide pandemic, but Covid-19 is also an occupational disease, easily transmitted in the workplace.” (Washington Post, 2021).
Why Covid-19 as an ‘occupational disease’ is important
Professor Michaels’ description of Covid-19 in this way, as an ‘occupational disease’ is important. It captures an ideology of medical professionals across the globe, yet is one that has eluded the political elite who delivered the presumptive legislation and policies. These have included, of course, social security programmes for those affected by Covid-19 and its variants such as the £500 financial support under the Test and Trace system (UK government, 2021), in an attempt to isolate further transmission in the workplace. Austria’s legislators, too, changed their Epidemic Act 1950 to include Covid-19 (on 15 March 2020) to ensure that workers would still receive pay whilst home recovering from the virus; the UK, by comparison, did this through social security payments.
The UK was a founding member of The International Labor Organisation (ILO) in 1919 and its inception under the Treaty of Versailles established such explanations under the 2002 protocol of Occupational Safety and Health Convention 1981. This outlined the terminology ‘occupational disease’ as covering disease contracted from resulting exposure to risk factors arising from work activity. Today the ILO has 187 member states.
The ILO Employment Injury Benefits Recommendation, 1964 (No 121), albeit ratified by only 24 member states (Belgium, Bolivia, Bosnia and Herzegovina, Chile, Croatia, Cyprus, Democratic Republic of the Congo, Ecuador, Finland, Germany, Guinea, Ireland, Japan, Libya, Luxembourg, Montenegro, Netherlands, North Macedonia, Senegal, Serbia, Slovenia, Sweden, Uruguay and Venezuela), paragraph 6(1), defines occupational diseases in the following terms: “Each Member should, under prescribed conditions, regard diseases known to arise out of the exposure to substances and dangerous conditions in processes, trades or occupations as occupational diseases.”
It then gives substantive regard to two main elements being present as defining an occupational disease, namely:
- The causal relationship between exposure in a specific working environment or work activity and a specific disease; and
- The fact that the disease occurs among a group of exposed persons with a frequency above the average morbidity of the rest of the population.
Thereby, categorising Covid-19 and its variants as an ‘occupational disease’ generates the requirement of vaccination to a certain group (employees) in lowering morbidity and mortality rates nationally. However, the UK Industrial Injuries Advisory Council (IIAC) in its May 2021 report states: “The health effects arising from workplace exposure to SARS-COV-2 cannot be distinguished from infection transmitted in non-occupational circumstances.”
At a stroke this seeming arcane amendment to the regulations will enhance the risk assessment for employees required from their employers. Initially, this will be for workers in care homes, but the consequences are set to be profound and far-reaching for employees in all sectors.”
The IIAC held evidence was not present at this time to prescribe Covid-19 as an occupational disease for the purpose of social security claims. However, it did suggest evidence of ‘doubling risk’ in certain occupations was a future pathway to prescription.
The IIAC will recommend prescription when strong enough evidence of occupational exposures cause disabling disease “on the balance of probabilities”. With 1.6% of the UK population (1.021 million) having lived experience of acute Covid-19, ongoing symptomatic Covid-19 and post-Covid-19 syndrome (long Covid) already (Office for National Statistics May, 2021) what number achieves this probability?
How could Austria, Denmark and Norway achieve prescription of Covid-19 as an occupational disease in 2020, yet the UK does not have the data?
With 3,872 workplace outbreaks and 4,253 education outbreaks cited in the British Medical Journal (Watterson, August 2021), the IIAC, rightly, recognises various occupations at more than double the risk. These include social care, nursing, transport, food processing, and retail work – with this further compounding pre-existing health inequalities throughout the UK workforce.
Why 11 November 2021 matters
Today is 11 November 2021. As well as being Remembrance Day, it is a day the UK will not see it’s like of again for generations. Why?
This is because the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (UK Parliament, 2021) will establish legal precedent in legislation of Professor Michaels’ words.
In other words, it will legitimise Covid-19 as an ‘occupational disease’ for UK employees. The UK government argues this amendment within the regulations is to protect ‘patients’, which is laudable.
But what it also does is now places the ‘employee’ as the risk factor and, as such, requires all employees to be risk assessed under ‘parity of esteem’ for physical and psychological health, as it is ‘foreseeable’ that the risk is not restricted to care home settings! (Sections 2, 3, and 7 of the Health and Safety at Work Act 1974 apply, incidentally).
At a stroke this seeming arcane amendment to the regulations will enhance the risk assessment for employees required from their employers. Initially, this will be for workers in care homes, but the consequences are set to be profound and far-reaching for employees in all sectors.
Why? Well, if we go back to this summer, August 2021 saw transport secretary Grant Shapps make an extremely telling comment in an interview on Sky News. He was being questioned about ‘no jab, no job’ policies, an extremely topical point in light of the confirmation by the government that mandatory vaccination will be required for frontline healthcare workers from next April.
Shapps said: “Yes I think it’s a good idea and, yes, some companies are going to require it,” before adding: “We’re not going to make that legislation that every adult has to be double vaccinated before they go back to the office.”
This highlights how government advisors – and even ministers and secretaries of state – have misinterpreted (or maybe even misunderstood) what they have initiated through their ‘occupational disease’ amendment to the Health and Social Care Act 2008.
The amendment, to recap, is designed to protect a patient or employee and those around them from an occupational disease, in other words Covid-19. At one level, of course, Shapps was right. There is no need to make another piece of legislation. But this is not because the government ‘is not going to make that legislation’, it is because it has already done so!
How so? By mandating ‘double vaccination’ as a legal requirement for continued work status, and through section 7 of the Health and Safety at Work Act 1974 now protecting employers’ requests of notice of ‘vaccination status’ of an employee in order to protect their employees and general public. So, is this a trapdoor to much wider ramifications for employers and, from there, occupational health practitioners?
Why this could be a game-changer for OH
With risk to both physical and psychological health from Covid-19 and its variants, the only option for employers to deliver ‘duty of care’ under section 2 of the Health and Safety at Work Act 1974 will be through a biopsychosocial assessment, as this will deliver ‘parity of esteem’ within risk assessments. As a side note, clarity here will be provided through The Management of Health and Safety at Work Regulations 1999, which identify situations within health and safety training that are particularly important, for example ‘on exposure to new or increased risks’, of which Covid-19 is of course one for all employees. This risk assessment requirement will continue until Covid-19 and its variants are no longer a risk to public health regarding morbidity/mortality.
Boris Johnson and his conservative government has just delivered access to occupational health for every employee in the UK as a legal requirement, regardless of organisation size”
What, however, does this mean for occupational health? Occupational health in the last 50 years has strived for a C-suite chair at the boardroom table. It has, too often, been perceived as a Cinderella specialty while our colleagues in health and safety, let alone within HR, always seem to get the board’s ear.
As practitioners, we all know that OH is very much a must-have resource for any organisation. What we may be going to see with the new amendment to the regulations is the C-suite finally catch up with recognising this.
The C-suite reserve’s about allowing OH its long-awaited place at the table is set to be shattered and OH can/will/should become an integral cog within their operational strategy moving forward for the next decade.
That is, I appreciate, quite a prediction but I don’t believe it is unwarranted. If, as the regulation amendment has laid down, organisations are going to have to establish a ‘new normal’ of annual biopsychosocial assessments through every level of the organisation, or risk public opprobrium and humiliation from the inevitable visit from the health and safety executive inspectors, who is going to have the skills and expertise to do that other than occupational health?
In sum, Boris Johnson and his conservative government has just delivered access to occupational health for every employee in the UK as a legal requirement, regardless of organisation size – as only a clinician can assess an individual’s psychological health. But very few people, let alone (in all likelihood) the government itself, appears to have fully recognised and appreciated this.
The Mental Health Act 1983 code of statutory guidance defines who are registered medical practitioners (‘doctors’), approved clinicians, managers and staff of providers and approved mental health professionals (AMHPs) on how they should proceed when undertaking duties under the Act.
To assess or intervene in the psychological health of an individual requires very specific training, qualifications and expertise, all of which are scrutinised in a court of law. Health and safety professionals assess equipment, premises and items used (in other words, things that are not alive). It is occupational health that assesses physical health and psychological health (or things that are living).
Many in business will, most likely, initially see this as a negative outcome, an extra burden. However, I am hopeful this will change as, in time, a more productive, efficient and resilient workforce emerges. A workforce, and workplace, that benefits from active policy interventions from qualified, professional, regulated providers for employee physical and psychological health. A workforce, and workplace, where ‘workplace health’ is driven through robust, evidence-based interventions, all led by occupational health.
Could we be at a new dawn for employee health and wellbeing? I very much hope so.
‘Democratic Control is Essential’, BMJ 2006;333:251, https://doi.org/10.1136/bmj.333.7561.251-a
‘Prime Minister’s statement on coronavirus (COVID-19): 23 March 2020’, https://www.gov.uk/government/speeches/pm-address-to-the-nation-on-coronavirus-23-march-2020
Coronavirus: a history of English lockdown laws. House of Commons, (April, 2021), https://researchbriefings.files.parliament.uk/documents/CBP-9068/CBP-9068.pdf
Duty of Care – Section 2, Health and Safety at Work etc Act 1974, Health and Safety Executive, (2020), https://www.hse.gov.uk/legislation/hswa.htm
‘Employment in the UK: April 2021’, Office for National Statistics, (April, 2021); https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/employmentandemployeetypes/bulletins/employmentintheuk/april2021
‘COVID-19: Jabs for jobs is “good idea” but down to individual businesses, says minister’, Sky News, August 201, https://news.sky.com/story/covid-19-jabs-for-jobs-is-good-idea-but-down-to-individual-businesses-says-minister-12367816
‘Claiming financial support under the Test and Trace Support Payment scheme’, UK Health Security Agency, August 2021, https://www.gov.uk/government/publications/test-and-trace-support-payment-scheme-claiming-financial-support/claiming-financial-support-under-the-test-and-trace-support-payment-scheme
Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021, UK Parliament, (2021), https://lordslibrary.parliament.uk/health-and-social-care-act-2008-regulated-activities-amendment-coronavirus-regulations-2021/
‘OSHA’s job is protecting workers. Of course that includes ensuring vaccination’, Washington Post, September, 2021, https://www.washingtonpost.com/outlook/2021/09/14/covid-vaccines-osha-mandates/
Watterson, A (2021). ‘Failure to prescribe: UK workers with occupational long covid-19 have been ignored’. Letter to the BMJ, pp374, 2021;374:n2018, https://www.bmj.com/content/374/bmj.n2018