Covid-19 in Health Care Workers: Medicolegal Aspects of Prevention and of Occupational Causation

The Covid-19 Public Inquiry has already shown systemic failings at Governmental level in preparing for and in managing the Covid-19 pandemic, It has also heard evidence indicating serious shortcomings in the protection of health care workers [HCW]. Before the advent of Covid-19, employers of HCW should have been well practised in the assessment and mitigation of risk to their employees in accordance with Health and Safety (H&S) Law including in relation to airborne infection. Authoritative guidance as well as regulations had existed to ensure appropriate worker protection. At the first indications of the onset of a pandemic, employers had an urgent need to safeguard HCW. Infection Prevention and Control (IPC) Guidance was very weak in this respect especially in not providing respirators as Respiratory Protective Equipment (RPE) for the majority of HCW. Instead, IPC Guidance recommended surgical masks (FRSM) in spite of prior evidence of their lack of protection against airborne viruses. However, this guidance explicitly disclaimed any position in respect of compliance with H&S Law, thus underlining the need for employers to fulfil duties as prescribed by H&S law. Information indicates that there may have been possible breaches of duty on the part of health care employers such as in carrying out “suitable and sufficient” risk assessments and in implementing control measures. Moreover, the Health and Safety Executive (HSE), in spite of its knowledge and statutory powers as well as requests from Trade Unions, did not produce specific Guidance to protect HCW from Covid-19. Nevertheless, a number of health care employers swayed by the evidence and/or a precautionary attitude did successfully provide HCW with protection (notably respirators) against airborne virus. Their actions indicated that it could be ‘reasonably practicable’ to protect HCW as legal duties required. A substantial persuasive body of epidemiologic evidence shows that in general on the balance of probability UK HCW contracted Covid-19 at work. In specific cases if HCW were at work during the incubation period and did not have known household exposure, occupational causation would be much more likely than not. The damage sustained by HCW who contracted Covid-19 and suffered sequelae as a result of their work warrants full reparation consisting of appropriate financial compensation and rehabilitation.