Oireachtas Joint and Select Committees
Tuesday, 30 March 2021
Joint Oireachtas Committee on Jobs, Enterprise and Innovation
Safety, Health and Welfare at Work (Amendment) Bill 2020: Discussion
I thank members and witnesses for participating in today's committee meeting and for abiding by the exceptional measures. I remind everyone that, apart from me and members of the committee secretariat, all members and witnesses are required to participate remotely and all members are required to participate from within the Leinster House complex. Apologies have been received from Deputy Shanahan. Senator Ahearn is running late.
Today we are carrying out pre-legislative scrutiny on the Safety, Health and Welfare at Work (Amendment) Bill 2020. The Bill provides for the treatment of Covid-19 as an occupational illness by employers and requires them to report any occurrences of the disease in the workplace to the Health and Safety Authority. The Bill was introduced in the Dáil last year by Deputy O'Reilly, who is also a member of our committee.
To assist the committee in its consideration of this matter today, I am pleased to welcome from the Health and Safety Authority, Dr. Sharon McGuinness, chief executive, and Ms Yvonne Mullooly, assistant chief executive in the chemicals and prevention division. From the Health Service Executive, I welcome Mr. Nick Parkinson, head of the national health and safety function; Dr. Lynda Sisson, national clinical lead for workplace health and well-being; and Professor Martin Cormican, national clinical lead for the antimicrobial resistance and infection control team and for the vaccine roll-out. From the Irish Congress of Trade Unions, I welcome Mr. Frank Vaughan, congress health and safety consultant, and Mr. David Hughes, deputy general secretary of the Irish Nurses and Midwives Organisation.
Before we start, I will explain some limitations on parliamentary privilege and the practice of the Houses regarding the reference witnesses may make to other persons in their evidence. The evidence of witnesses physically present or who give evidence from within the parliamentary precincts is protected by absolute privilege pursuant to both the Constitution and statute. However, today's witnesses are to give evidence remotely from a location outside the parliamentary precincts. As such, they may not benefit from the same level of immunity from legal proceedings as witnesses physically present.
Witnesses are reminded of the long-standing parliamentary practice to the effect that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction.
Opening statements and other documentation have already been circulated to all members. To commence our consideration of this matter, I invite Dr. McGuinness to make her opening remarks on behalf of the Health and Safety Authority.
Dr. Sharon McGuinness:
I thank the Chair and members of the committee for the invitation to come before the committee to present the Health and Safety Authority's views on the Safety, Health and Welfare at Work (Amendment) Bill 2020. I am joined by my colleague, Ms Yvonne Mullooly. In the interests of time and with the committee's understanding, I do not propose to read the detailed statement and will instead concentrate my comments on the specifics of the proposed amendment, which are detailed from paragraph 16 of my written statement onwards.
In considering the amendment, the authority would state first that the protection of workers and the prevention of accidents, injuries and illness is always our primary goal. To achieve this, we need to have robust and reliable information and data. With regard to Covid-19, I would point out that the authority already has a significant level of information available to it in respect of cases of the disease in the workplace. This information comes from both public and occupational health and safety reporting systems that are already in place and operating. These include the requirement, under the biological agents regulations of 2013 to 2020, for an employer to report to the authority if an employee contracts Covid-19 as a result of occupational exposure from working with the virus. The public health computerised infectious disease reporting system, CIDR, is managed by the Health Protection Surveillance Centre, HPSC, and the national incident management system, NIMS, collects data on incidents from the public healthcare sector. All of these reporting systems are important sources of information not just for the authority but for public health authorities. We have access to the data available on all three systems.
In addition, we have initiated the preparation of a regulatory impact analysis, RIA, on foot of a request from the board of the authority. The intention of the board is to ensure the authority has comprehensive and immediate data to support the protection of workers from Covid-19. The purpose of the RIA is to identify a range of possible options for the potential achievement of this objective and to provide detailed information on the costs, benefits and impacts of each option. The RIA will provide our board with a basis for recommending the most appropriate way forward and will be considered by the board in the coming weeks.
I will now return to the specifics of the amendment, and I again refer members to paragraph 16 onwards of the written statement provided. As I have already said, the authority would point out that the protection of workers and the prevention of accidents, injuries and illness is always our primary goal. Covid-19 is an infectious disease which has caused a public health pandemic, and an individual has the potential to be infected by contracting it in or out of the workplace. The most reliable data on Covid-19 in the workplace are the data collected in the infectious disease database known as CIDR, as these data are medically validated and confirmed by a Covid-19 PCR test. The CIDR data are provided to the authority by the HPSC every week and give details of all cases of Covid-19 in all workplaces. This allows the authority to identify quickly the workplace, its geographical location and the number of cases associated with it. The information provided for in this Bill is, therefore, similar to that already supplied directly to the authority by the HPSC every week and, as such, there may be no additional benefit in the proposed amendment.
The Bill may be contrary to the scope of the Safety, Health and Welfare at Work Act 2005 as the Act only provides for an occupational illness or disease that is attributable to work.
The wording in the Bill would in essence make Covid-19 an occupational disease if any worker in a workplace were to contract it, irrespective of where he or she caught the disease. As Covid-19 can just as easily be acquired by employees outside of work and subsequently brought into the workplace, such circumstances would not be considered "attributable to work" under the Act.
The Bill needs to consider the implications on all employers of imposing a Covid-19 reporting obligation on them. Most employers would not be in a position to assess or attribute Covid-19 infections to their workplace with any degree of medical or legal reliability, since Covid-19, as I stated already, can be acquired in community, domestic and workplace settings. The amendment may leave employers with an obligation, which they may not reasonably or legally be able to fulfil, as there is no counter-obligation on the employee to provide detailed confidential medical information to his or her employer.
The Bill may introduce a significant administrative burden on certain employers, particularly those in the healthcare sector, to report information that is already reported to CIDR, and in certain circumstances is also reported to NIMS, as well as reporting requirements under the biological agents regulations directly to the Authority. In that regard, information is already available through these three systems.
Employers who have a due to report to the authority under the biological agents regulations are saying that it is difficult to determine if cases of Covid-19 amongst their workers are occupationally acquired or have arisen outside the workplace due to community transmission. Determining the source of Covid-19 infection in an individual can require detailed medical assessment by both public and occupational medical professionals.
There are, as has been stated, three reporting requirements in the State related to Covid-19 in the workplace – CIDR, NIMS and the reporting under the biological agents regulation. A fourth is also under assessment by the authority, that is, the regulatory impact analysis noted earlier. The added value in creating a fourth or possibly a fifth reporting system in Ireland for the infectious disease Covid-19 is questionable, as it may not provide any additional public or occupational health assurance or relevant policy-making information on Covid-19 in the workplace.
Guidance from the Department of Public Expenditure and Reform requires the preparation of an RIA to support significant legislative developments which is why the authority initiated the RIA development process to consider options for reporting of Covid-19. The authority believes that the RIA should be completed before any amendment is made to the 2005 Act or, indeed, any other occupational health and safety legislation. Any regulation for Covid-19 reporting needs to be made on both a sound legal as well as a medical basis.
The authority's RIA development process involves consultation with a range of parties, including employee and employer stakeholders as well as Departments and agencies. It is nearing completion and will go to our tripartite board for its consideration and recommendations. We feel, therefore, amending the 2005 Act at this juncture may be premature.
To conclude, there are already three reporting systems in the State for cases of Covid-19 in the workplace. The authority has access to all three and is currently completing a regulatory impact analysis, which is looking at options for a possible fourth system. Worker protection is already well served by all these reporting systems and by the work that the authority is doing in relation to the work safely protocol and specific occupational health and safety legislation such as the biological agents regulation. Worker protection is also at the forefront of all the engagement and supports the authority provides to public health, which is ultimately responsible for addressing this global pandemic. The key to managing Covid-19 ultimately resides with all of us adhering to public health advice, guidance and regulations.
On behalf of the Health and Safety Authority, I thank the joint committee for the opportunity to present to the committee today and I look forward to answering questions in due course.
Mr. Nick Parkinson:
I thank the Chairman and members for the invitation to meet with the committee on the general scheme of the Safety, Health and Welfare at Work (Amendment) Bill – pre-legislative scrutiny. I am joined by my colleagues, Dr. Lynda Sisson and Professor Martin Cormican.
As the members will be aware, the HSE made a submission to the committee and we will be happy to take questions on it. I will, therefore, confine my opening statement to some general points.
At the outset we would like to emphasise that the HSE views the health, safety and welfare of its staff and service users as being of the utmost importance. Our position on, and dedication to, securing safety, health and welfare at work is demonstrated through our corporate safety statement and suite of supporting policies.
The past 12 months have been a challenging time for the health service, as a front-line service. They have brought new health and safety management challenges and the organisation, its managers and staff have been required to adapt to a very rapid pace of change. We have worked hard to manage the health and safety issues and we would like to strongly acknowledge the support and dedication of all the staff of the HSE in meeting the best possible standards under the unique circumstances presented by the pandemic. We would also like to acknowledge the support and assistance received through our collaborative relationships with key stakeholders, such as our union colleagues, the Health and Safety Authority and the State Claims Agency.
One of the areas in which we have adapted, is that of Covid incidence reporting. We have strongly encouraged and seen a high level of reporting via three channels: first, via public health and the computerised infectious disease reporting, CIDR, system; second, internally, via the national incident management system, NIMS; and, finally, externally, to the HSA under the Safety, Health and Welfare at Work (Biological Agents) Regulations 2013 (as amended). Following changes to the biological agents code of practice, external reporting to the HSA of cases of the disease considered to have arisen from occupational exposure commenced in November last.
The information gleaned through these approaches is regularly analysed in the HSE and action is taken, as necessary, to respond to any significant findings and trends. The public health CIDR system takes a broad approach, and records all cases including those affecting healthcare workers, regardless of whether they are in active HSE service. It does not specifically determine occupational causality. NIMS collects cases relating to active HSE staff and seeks information on whether there is an occupational or workplace link. Similarly, the current external HSA reporting requirements apply to cases that are work-related, that is, resulting from occupational exposure. In both cases the relevant manager, potentially with medical, occupational health and contact tracing or public health assistance, makes an analysis as to whether the case is work related. We have developed documentation to support managers in the decision process.
The current reporting structure provides for a nuanced approach to Covid incident reporting, which aligns well with the systems already in place for the statutory reporting of other incident types. Potential issues with a broad-brush reporting requirement arise from categorising Covid-19 as an occupational illness. Covid-19 is significantly, perhaps predominantly, transmitted in the community, with a consequent impact upon people who work - observed patterns in reported incidents suggest that cases within the organisation follow community trends; healthcare consists of many professions and work activities and cannot be considered homogenous in terms of exposure to Covid. While a causal relationship may be demonstrable in some situations, for example, unprotected exposure during laboratory work with the live infectious agent, this would not be the case across all areas of the organisation; and the requirement could lead to the extensive and unfiltered reporting of many thousands of cases across a workforce the size of the HSE - hence the pool of cases received by the HSA may be clouded by community transmitted cases, potentially making it harder for the enforcement authority to target action.
It is often very difficult to identify where and when a person acquired an infection, such as Covid-19. This is because at the point in time when infection occurs, the person catching infection is generally not aware that anything has happened.
If the person develops symptoms it is usually five-to-six days after he or she became infected, but the symptoms can develop after one day or can take up to 14 days. This means that a person who develops Covid-19 could have become infected in any of his or her interactions with another person anytime during the previous 14 days in any setting.
For people, including healthcare workers, who move between different settings such as home and work, it is difficult to say where they acquired infection. It is sometimes possible to link a healthcare worker infection to the workplace with reasonable confidence based on all the circumstances. Sometimes it is possible to link a healthcare worker infection with the workplace with great confidence, based on sequencing of the genes of the virus from the worker and others linked to the same workplace.
The circumstances of infection also make it very clear that healthcare workers become infected outside the workplace because they have become infected during periods of leave and in other circumstances in which their infection was linked to an outbreak in a non-healthcare setting.
It is noted that occupational illnesses or diseases are specifically excluded from the reporting requirements under the safety health and welfare at work general application regulations, as amended, potentially due to the clear reporting requirements for specific cases or circumstances arising under the social welfare (occupational injuries) (prescribed diseases) legislation. This legislation lists or prescribes specific examples of occupational injuries and diseases and, in the case of the latter, the industries or activities they are associated with, and the circumstances under which a case may be considered to have been work-related. The ethos underpinning the legislation is essentially echoed in the approach taken in the biological agents regulations and associated HSA code of practice, that is, occupational injuries and diseases are reportable where there is a clear, demonstrable and epidemiologically sound association with a given type of work or workplace and it can clearly be differentiated from cases where there are other, additional or alternative causes or contributing factors.
The HSE is enthusiastic about, and embraces, any new and enhanced legislation that furthers the safety, health and well-being of our staff and service users. Assuming robust application, the current systems should provide quality, targeted data upon which the HSE can review its approach to Covid occupational safety health risk management while also allowing the enforcement authority to respond to cases or clusters of occupationally acquired Covid-19 infection in a focused manner. In addition to considering potential further legislation, perhaps the committee would also consider the role further guidance and instruction might play. I thank the members of the joint committee for the opportunity to present the HSE’s views on this important Bill.
Mr. Frank Vaughan:
ICTU welcomes the opportunity to have made a submission on this matter and we are pleased to accept the invitation to join the committee in its discussions this morning. As the representative body for trade unions and their members, the congress has always taken the lead in seeking to create safer workplaces and we see occupational safety and health as a key concern of unions.
We know that wherever people congregate there is a risk of catching or spreading Covid-19. Workplaces, regardless of sector, are potential vector points and this is explicitly recognised in public health advice that as many people as possible work from home. It is in the interests of workers and society as a whole that all cases and clusters in workplaces are reported. Workers must be protected and reporting is a small but important part of our legislation which triggers the protections provided in law to mitigate the risks and protect us from workplace hazards. The current Covid-19 pandemic is such a hazard and infections must be considered as a reportable workplace incident. The EU has recognised this by expediting the revised biological agents directive and amending it to include SARS-CoV-2 within its ambit. The EU recognised it from June last year and set a deadline for states to enact it on or before 24 November 2020. Ireland enacted it on that day and now must explicitly extend the reporting it provides for to encompass all workplaces.
The amendment under discussion is to the Safety, Health and Welfare at Work Act 2005. We think it is useful to reflect on some aspects of the existing legislation which help to inform our perspective and which we detailed in our earlier submission. The Act defines the term "accident" in section 2 as meaning "an accident arising out of or in the course of employment which, in the case of a person carrying out work, results in personal injury". The term "personal injury" is then defined by the same section as including "(a) any injury, disease, disability, occupational illness or any impairment of physical or mental condition, or (b) any death, that is attributable to work". Our primary legislation would seem to be clear that an occupational illness is covered by the Act and is, therefore, reportable to the HSA, which has statutory responsibility "to promote, encourage and foster the prevention of accidents, dangerous occurrences and personal injury at work in accordance with the relevant statutory provisions", as per section 34(1) of the Act.
Some years ago, a report entitled A Review of the Occupational Diseases Reporting System in the Republic of Ireland was prepared for the HSA by Professor Anne Drummond of UCD. The report recommended:
[A]review [of] the requirements of the Notification of Accidents Regulations to require that employers report accidents resulting in personal injury (including disease and illness) or death, and record occupational diseases and work-related illnesses contracted as a result of an exposure over a period of time to risk factors arising from work activity, and report to the HSA when requested.
Notwithstanding this, a position was adopted regarding the reporting of accidents in an amendment to the general application regulations in 2016. These regulations were made pursuant to section 58 of the 2005 Act and impose an obligation on employers to report accidents and dangerous occurrences in the workplace. However, unlike the Act and the recommendations from the report, the regulations, at regulation 224, define the term "personal injury" as not including "any disease, occupational illness or any impairment of mental condition". In other words, disease and illness were specifically excluded. It is not entirely clear why this view was adopted, but the effect of the provision is that employers are not obliged to report occurrences of occupational disease or illness. This is in contrast to accidents whereby employers are obliged to report to the HSA any accidents resulting in more than three days' absence from work.
The Bill seeks to address this deficiency in workplaces incidences of Covid-19 and would assist in protecting all workers by requiring all workplaces to comply with the minimum requirements of the biological agents directive. While some might contend that this directive applies only to a restricted range of workers, such as those in laboratories, there is no such stipulation in the legislation. We would maintain that the legislation clearly covers all contexts in which workers might be exposed to SARS-CoV-2 and thus at risk of infection and Covid-19 disease. There is no justification for making a distinction between workplaces in a pandemic of this nature.
The suggestion that reporting would expose employers to litigation has been advanced by some in government as a concern. Such a concern is misplaced and is a conflation of two entirely different legal consequences. The HSA inspects, advises, recommends and issues advisory notices. Only in cases of absolute non-compliance does it prosecute. Litigation is reliant on proof of negligence. The requirement to report is a long way short of admission of negligence. The argument is a diversion from the absolute responsibility of the Legislature to protect workers in their workplaces. We believe it is important, therefore, that there be a direct reporting requirement to the national authority charged with responsibility for health and safety in our workplaces. Workers want nothing more than a safe place to work and, therefore, ICTU supports the Bill.
I thank Mr. Vaughan. I now invite members of the committee to discuss the issue with our guests. I remind members to use the raise hand function on Microsoft Teams and, importantly, to cancel it once they have spoken. I also remind members of our rota system.
I thank the Chair. I thank all the witnesses for their submissions and contributions. This proposed legislation is sponsored by me. I will not say it close to my heart, but it is a little bit. The Bill, as we know, arose from conversations during April and May last year regarding a request made by ICTU to introduce an amendment to ensure that Covid-19 becomes a notifiable disease.
I ask the witnesses for their views on the previous situation. I will refer briefly to a contribution from another Deputy to the Covid committee. He referenced the previous regulations from 2007. We know that in 2016 a change was made to remove infectious diseases from the regulations. Do the witnesses have a view on why that was changed and what the potential implications would be if we reverted to the pre-2016 situation? I am easy about who goes first. Perhaps they can go in the order in which they spoke earlier.
Dr. Sharon McGuinness:
I thank the Deputy for her question. The pre-2016 regulations were introduced when we amended the general applications regulations for the purposes of the reporting of accidents and incidents. At the time occupational illnesses were not included as part of the definition of "personal injury". One reason for that was that we introduced the amendment to put a stronger emphasis on the reporting of accidents and incidents at that time and made sure that people reported them to us so that the regulation had that particular driver.
At the same time, there was no defined list of occupational illnesses at national or European level. In terms of the intention of the board when it reviewed the regulatory impact analysis at the time and made the recommendations to the Minister regarding the legislation, it was felt that without a defined list, it would be difficult for employers to identify with any degree of certainty an occupational illness. The key point regarding personal injury and the definitions used in the Act is that they must be attributable to work. It is not simply the case that somebody has an occupational illness; it has to be attributable to work. That is a key factor in that regard.
Part of the current regulatory impact analysis involves an option that might include an amendment to section 224 of the 2016 regulations. We are examining that, and that could come forward in due course. It would require reporting. However, the challenge will still remain as to whether an employer can, with any degree of certainty, confirm that Covid-19 was caught by a worker in a workplace and attributable to the work activity that was going on. That remains a challenge if the legislation is changed or that definition is introduced.
We get notice of all of the cases and outbreaks of Covid in workplaces. We are part of a number of outbreak control teams established by public health. Ultimately, public health manages an outbreak and we are there to support and guide. While there is an absolute priority for worker health and safety, and the protection of that, when there is an outbreak we are very much mindful of that. Equally, it is important to manage an outbreak because we do not want the disease to move out to the community. There is a higher public health requirement. I hope that answers the Deputy's question.
Mr. Frank Vaughan:
I thank the Deputy. In my opening remarks I mentioned that we were not entirely clear why the amendment was introduced in the way it was 2016. I have no particular insight on that, bar the fact that there seemed to be resistance to doing that.
A couple of speakers have remarked on the fact that we have a community incidence of Covid-19, and that is probably the preponderance of cases we have the State. Nobody is denying that. Clearly, we have had clusters of infection in workplaces, not only necessarily in the highlighted areas such as healthcare, but also last year, tragically in a number of our meat factories. Sometimes I suspect that the concentration on such cases mitigates the occurrences in other sectors. Cases are happening across the board.
With all occupational diseases, not just Covid-19, there can be difficulties in determining precisely what has occurred in an occupational context as opposed to some other source, be it wider environmental factors or whatever. It seems to be the case that many other jurisdictions have come up with ways of dealing with that, and an evidence-based approach is taken. Over the past year various other countries have adopted essentially a basis of likelihood with regard to Covid-19. The argument that one cannot determine the source of the infection brings us into a blind alley. There are ways of determining probability and likelihood. I do not think that is a sufficient reason to refuse to-----
Mr. Vaughan is confident that the systems would be in place to be able to determine that. It is not credible to say that the amendment is not required purely and simply because it might place an administrative burden on someone or might be hard to prove, because the systems can be put in place to determine what has happened. We know, for example, that community transmission is a significant factor, but it would be foolish to pretend that it is only community transmission. There are people who have acquired this infection in their workplace, and I do not think anybody would contradict that. In a scenario whereby they had contracted Covid-19 in the workplace, their employer is currently not obligated to deal with that. We need to place that obligation on the employer.
The purpose of this engagement is to tease out the potential implications of the passage of the legislation and to ensure that we robustly engage with any of the issues identified. I ask Mr. Vaughan to outline his opinion on the notion that somehow the possibility that an administrative burden might be placed upon an employer would be sufficient reason not to proceed with this. I do not accept that. Employers would not necessarily be resistant to an administrative burden if it improved the health and safety of their staff. In my experience, and as a former union official, the vast majority of employers want their workers to be safe. Not only that, they want to be able to loudly proclaim that and have it on the public record.
There is a reason some workplaces have been singled out for special attention during this pandemic, with meat factories, nursing homes and hospitals being the top three. Nobody is suggesting that the reason they were singled out for special attention was they happen to be located in areas where there is a high level of community transmission. In fact, the reason these workplaces have been singled out for specific and special attention is they have become sites of transmission. I contend that where this has happened and infections have been acquired in a workplace, that should be treated as an occupational illness purely and simply because it is an illness a person acquired in the conduct of his or her work.
The point made by Congress is important. That is not an admission of or proof of negligence on behalf of any employer, in the same way that any workplace injury or illness is not negligence. Negligence is not automatically assumed.
I was alarmed to read some of the submissions where the two were linked in that this will automatically mean that negligence is proven. This is not the case as negligence is proven in many forums. In the opinion of our witnesses, it is true to say that Covid-19 is acquired in the workplace? If one does not call it an occupational illness or workplace injury, what would one call it if it is contracted in the course of one's work? I am aware that in the regulations, diseases like contact dermatitis are mentioned. Again, one has to prove that it was contracted in the workplace and it could have been contracted elsewhere. In all likelihood this is probably a good enough definition but I am interested to hear the views of our witnesses on what we should say when someone contracts the disease in the workplace because people do and it has been happening. The proof of that is the fact that we have had several types of work singled out for particular and special attention. Could I have our witnesses views on that point starting, perhaps, with the Health and Safety Authority, the HSE, and the Irish Congress of Trade Unions, if that is okay?
Dr. Sharon McGuinness:
I thank the Deputy for her question. The idea of an occupational illness acquired in the workplace is one thing but being attributable to work is another aspect of all of the considerations we have regard to in the Act. Even the HSE in its earlier statement said that certain cases can be attributed directly to work and that is what should be reported and recorded.
On the data that we receive through the public health computerised infectious disease reporting system, CIDR, we already have the high level element of what is happening in a workplace in the numbers of workers who will have contracted Covid-19. This allows us to respond appropriately in those aspects. In that respect we are supportive of looking at and ensuring that employers and others are clear as to what is attributable to work and how they can report that fully and legitimately. That is already in play in the biological agents regulations, as I have already said, but equally, we are looking at it in the wider context for other workplaces through the regulatory impact analysis that is ongoing.
It is welcome that Dr. McGuinness is looking at it and towards introducing a fourth source of information, which is very important. If a fourth source of information is being contemplated, it is because it is necessary. The issues around administrative burden, etc., will apply in the circumstances where a fourth set of information is introduced. That is not a good enough reason not to proceed.
As my time is very short, I see that Mr. Hughes from the Irish Congress of Trade Unions has his hand up and I am unsure if that is to respond to this point here.
Mr. David Hughes:
The Deputy is correct in what she is saying as there is an obligation on the State to protect workers, irrespective of anything else that it is doing in public health. It is an important feature. Reporting is not necessarily just about the individual cases but is about surveillance. We know, for example, that in the last week the epidemiology reports are indicating that although most of the economy is closed, there were 19 outbreaks in workplaces. If one considers hospitals, healthcare facilities and residential facilities, there were 16 outbreaks. That is where the health service is fully operational and where workplaces are practically closed. We have an issue with clusters in workplaces and the surveillance that a requirement to report would give would assist the public health authorities, but as importantly from the point of view of workers, would demonstrate that this State is taking seriously its responsibilities to protect workers in their workplace. The arguments that have been made, it seems to me, are that workers must wait. That is a familiar argument. Workers cannot wait as their health, safety, welfare and their very lives are at risk when the economy opens up if there is not a proper reporting mechanism to deal with outbreaks in workplaces.
The other argument that has been suggested is that the information is already available. Perhaps it is already available but there is no requirement to drill down into that information. For example, we can say that it is in particular sectors but we cannot get to the meat, and more particularly the workers or their representatives do not find out the actual locations unless it becomes public knowledge. The information being available and a requirement on the State to act are not the same thing and in this case they definitely are not.
A further argument that is being made is that, essentially, a worker has to prove beyond all reasonable doubt that they got it in their workplace. That is surely too high a standard in a pandemic. The number of healthcare workers who have currently contracted the disease is 28,038, as reported yesterday. The majority of them were not reported to the Health and Safety Authority because there was no requirement to do so until the 24 November 2020, when the European directive became enforceable in every country.
We have a problem here and it is putting our heads in the sand to say that taking the requirement to report disease in 2016 was appropriate when we are now in a pandemic. This amendment would put this requirement back there and it should be back there. I thank the committee.
I thank the Chairman, Dr. McGuinness, Mr. Parkinson and Mr. Vaughan for their contributions. I am not opposed to enhancing reporting requirements when the added value is clear but I believe that the added value is lacking in this Bill. Both Dr. McGuinness and Mr. Parkinson have made it clear to me that the reporting systems which are already in place are significant. Strengthening those systems by providing additional resources to ensure that they are fully implemented seems to me a more prudent route than creating more layers within the system. My colleague from Kildare North, Deputy Lawless, spoke previously in Dáil Éireann on the Bill. Members of all parties and none have broadly agreed during this pandemic that our path must be shaped by expert advice so the very clear reservations that both Dr. McGuinness and Mr. Parkinson have outlined this morning should give us all food for thought as to what exact benefits will derive from the Bill.
I recognise the point made by Dr. McGuinness that it could prove very difficult for employers to judge whether an employee contracting Covid-19 did so in his or her workplace and therefore should be reported. Obviously, there have been some clear cases of workplace outbreaks that we are all aware of but of the people I know who have contracted Covid-19, the vast majority have no idea where it was transmitted to them. Their employers, therefore, would not have been in a position to judge in a majority of cases.
We should also note that the vast majority of businesses have acted responsibly throughout the pandemic by following all public health advice, despite the crippling impact on their businesses. Too often businesses are spoken of in extremely negative tones on the basis of actions by a small minority or handful of businesses in the entire country. Having been an employer for most of my life, I would be very conflicted if an employee advised that he or she had contracted Covid-19 but did not wish me to inform anybody else. On the one hand the Bill would require me to do so but on the other hand I presume doing so against the express wishes of an employee may cause a breach of GDPR requirements.
These are issues that large companies with expert legal advice may be able to find the right solution for. However, for the sector that I represent, the SMEs, which are the backbone of the Irish economy, such a scenario would be challenging and adds considerable cost and burden. These companies need clarity from State bodies as to their requirements and this is lacking from the Bill in its current format.
We all want to protect workers and we all agree that under no circumstances should anyone work in an unsafe workplace or in a workplace that causes significant risks to one's health. We need to equally ensure that the administrative, and potentially the financial burdens placed on employers by the State do not result in workers no longer having a workplace. Businesses up and down the country are battling to survive a crisis that, as we are all aware, is not of their own making. The last thing they need is additional burdens being imposed on them by the State, particularly where the added value is "questionable", which is what we heard this morning on the basis of expert views. Having said that, if the Bill is to progress I suggest that we may be better served by considering the broader category of infectious diseases, rather than limiting the matter to Covid-19. I appreciate, as we all do, that Covid-19 is a challenge we are currently facing but a broader Bill may leave us in a better position in the long term.
Mr. David Hughes:
The Senator makes some points about the evidence that is being given but one cannot ignore the fact that we are dealing with a pandemic and employees have an obligation to tell their employers if they have Covid. That is an obligation in the public health regulations. The idea that an employer would be breaching GDPR regulations is stretching it. The reality is we are dealing with a pandemic and with something that is conveyed from one human to another. We must all work to ensure that wherever there are outbreaks, be they in households, workplaces, hospitals or institutions, they can be dealt with in a way that suppresses the virus.
I agree that the wider question of removing regulation 224, as the Senator has suggested, is a bigger issue and that needs to be dealt with. The 2007 report by Professor Anne Drummond of UCD did not suggest that it should be withdrawn from the Act. It was an original requirement in the Act that disease would be reportable. That requirement was taken out in 2016 and the HSA is conducting an RIA on that. The reality is that Covid is rampant. Lots of workplaces are looking to get staff back in and if we do not get a reportable system then our ability to control this disease is lessened and workers are less protected.
Dr. Sharon McGuinness:
We are all minded of worker protection and as I said earlier, that is the HSA's driving and primary goal. A reporting system of any sort will support that goal but it does not prevent us going ahead and making sure there are other systems in place to support and protect workers, particularly in relation to Covid-19. We inspect and provide advice, support and guidance directly to employers and employees. We have a workplace contact unit that is available to all employees if they have any concerns about their health and safety in the workplace. That is still our driver and that will continue whether we have two systems, one system or five systems. That will always be our ultimate driver.
On the wider context of that, we are looking at occupational illness in a general sense. We have been looking under our current strategy to have better recording and reporting because it is something that needs to be addressed in the wider context. The decision around the 2016 regulations was taken by our tripartite board, which is made up of employer, employee and other stakeholders and the board made a recommendation to the Minister in due course. We have done a lot of consultation, we will continue to do that consultation and whatever the outcome from the discussions here is, we will take that on board and implement it when and if necessary.
Does the HSA know what the circumstances were in 2016 when this was removed? Was it based on the evidence that is being suggested, that the three existing systems are a better way of tracking this or what was the background to that decision?
Perhaps additional reporting restrictions or obligations by employers are not the way to go here. As we start to reopen the economy - and as other speakers have said, most of the economy is closed - what are the new expectations of employers? Is the HSA modifying its guidelines in respect of antigen testing, for example, which seems to be on the verge of being accepted as a tool? Is the HSA offering new advice to employers?
On the other side, the profile of risk from this virus changes significantly as we vaccinate those over 70 and those who are vulnerable to illnesses. How will this change the HSA's view towards workplaces and the safety of opening workplaces?
Does the HSA have adequate experience with employers in respect of cases that are unearthed? If the HSA is not finding it adequate, is it due to deficiencies in its powers or what is the situation?
Dr. Sharon McGuinness:
I hope I have taken note of all of the Deputy's specific questions. I mentioned the 2016 regulations and we made that particular amendment because there was a low level of reporting of workplace accidents in general at that stage under the 2011 regulations. We needed to make sure that was increased so we had proposed an amendment. A regulatory impact analysis was completed as part of that particular legislative process. At the time of the RIA, we identified that there were difficulties for employers in assessing and attributing disease or illness to a workplace activity and that there were concerns there. Therefore, at the time the board of the authority decided, after all the considerations, not to put in the requirement for the reporting of occupational illness onto the issues where it developed it at a national and EU level. We have kept and will continue to keep that under review as matters go forward.
On new advice, the HSA has a responsibility under the work safety protocol. We have worked closely with colleagues on the employee and employer side in the initial development of the return to work safely protocol and then the later work safety protocol. Together with a range of other inspection bodies, we are involved in the inspection and checking of adherence to the work safety protocol. The detail in that protocol is at every stage predicated on the public health advice. As that changes, the advice in the protocol changes. The general premise and framework is for employers and employees to work together to make sure: there is a Covid response plan in place; people are informed and trained; and there is a lead worker representative in place to support the employer and other workers. This is done in order to protect and prevent the spread of Covid-19 in the workplace.
That is very much there and obviously any changes to the public health advice would be reflected in that particular document. Obviously, as more people are vaccinated in the wider community - it is not an area for which we have responsibility - the case numbers go down generally. That can have a beneficial effect in the workplace. Likewise, when workers in particular sectors such as healthcare also get vaccinated, that also protects them. Ultimately, we are still very much minded to continue our roll-out of the advice, support and inspections that we do for Covid, whatever stage the vaccination programme is at. The important thing is to maintain keeping Covid out of workplaces but, equally, supporting public health in the wider community response to outbreaks of it.
Our general experience with employers and our inspections has all been positive. Employers are happy to see us when we check protocols. They are pleased to show us how they have done the job and how they are putting in place the necessary public health measures. When there are specific outbreaks of Covid in a workplace, we support the public health management of that outbreak. Sometimes we go in as the boots on the ground into particular workplaces such as the meat processing, retail, manufacturing or construction sectors. We go in to support the public health officials to ensure their recommendations are put in place. It has been a positive engagement. Throughout this, all of the discussions between public health and occupational health have been done generally with employee and employer considerations on board. Both sides have been supportive and engaged in those discussions throughout the process of managing Covid.
I thank the witnesses for attending the meeting today. I also thank Deputy O'Reilly for putting forward this matter as it has provided us with an opportunity to examine and tease out this issue.
Who is doing the RIA, and when will it be finalised? Dr. McGuinness said the Health and Safety Authority receives weekly data reports on Covid-19 workplace outbreaks. These are based on medically confirmed and validated data. How does that work? Will she talk us through exactly how those reports get to the authority? Who is responsible for informing the authority and where do they get the information? Is there any obligation on employers to report Covid in the workplace?
There is a small contradiction in some of the evidence. I apologise if I am misquoting him but I think I heard Mr. Hughes say that employees have an obligation to tell an employer if they have Covid-19. In the Health and Safety Authority submission, however, it is stated:
The amendment may leave employers with an obligation, which they may not reasonably or legally be able to fulfil, as there is no counter-obligation on employees to provide detailed confidential medical information to their employer. Creating a requirement for employers to capture and report alleged incidents of COVID-19 to a third party may also have GDPR implications.
There is a contradiction. I am not sure which of the two is correct. Does an employee have an obligation to tell his or her employer that he or she has Covid-19? In that instance, I am also aware of the advice we all have heard that, if a person thinks he or she has the symptoms, then that person is asked to stay at home and get a test by the public health people. If somebody has the symptoms, are they obliged to tell their employer about it? How is Covid-19 reported to the Health and Safety Authority? Is it from the public health people, the employer or the employee?
Should the employer have permission from the worker to report he or she has Covid-19? For example, say I am working in a particular facility and I contract Covid-19. Should the employer simply report a case of Covid-19 in the workplace or go further to report David Stanton has Covid-19?
Mr. David Hughes:
The requirement for employees to report on Covid comes from the original Act. An employee in the original Act cannot put colleagues at risk. They are obliged to avoid putting their colleagues at risk. Labour lawyers and trade union officials of experience take the view that such an obligation in a pandemic requires Covid-19 to be reported to a person's employer. If a person is symptomatic, if a person suspects he or she has it or if the public health authorities say he or she has it, that person would be obliged to report it. By not doing so, that person would be putting his or her colleagues at risk and an employer would be entitled to move against such an employee in that situation. There is an obligation without doubt to report to one's employer.
On the question of permission to report, given the employee has an obligation to tell his or her employer, the employer then would not have to seek GDPR concerns in respect of reporting it to a State authority where the obligation would be there to do so. I do not believe these are real issues. As we are dealing with a pandemic, these matters have to be addressed with a level of urgency not there at the moment.
Dr. Sharon McGuinness:
The authority has two systems in place. One comprises the reporting regulations from the Safety, Health and Welfare at Work (General Application)(Amendment)(No.2) Regulations 2016. This deals with the reporting of accidents and incidents to the authority. The other one is the reporting under the Safety Health and Welfare at Work (Biological Agents) Regulations 2013, amended in 2020 to include the virus SARS-CoV-2. It is specific to Covid-19 because it requires reporting by the employer to the authority where there is occupational exposure and it is attributable to the individual worker who has contracted Covid-19.
There is also separately the public health system. Covid is an occupational issue and is ultimately a global public health pandemic. The driver for Covid comes under the public health infectious disease regulations, which have been amended to require the reporting of Covid as an infectious disease. Every time somebody gets tested, that detail is put into the computerised system, CIDR, established and run by Health Protection Surveillance Centre. Those are the data everybody sees daily and weekly with facts and numbers. The information in that database comes from the public health medical side. Everybody who has a positive PCR test would be reported to that system.
We get that directly from the HPSC every week.
The HPSC updates the information up to the previous weekend, and we get it every Tuesday meaning that it is live and realistic. There is also other reporting. We are a member of the national standing oversight committee on high-risk sectors, which include construction, meat processing and food manufacturing as well as some other manufacturing plants. A number of employer groups and ICTU are also members of that committee. We get data from it on particular cases in those workplaces.
The third system I mentioned was the national incident management system, NIMS, which was set up by the State Claims Agency. It is effectively a system for the public healthcare system to report incidents. We have access to those data if and as required in that context.
I thank the witnesses for their presentations. I support the Bill. Workplace infections are a driving factor in Covid, but that has been hidden by the inadequacies of our testing and tracing regime. If one looked at current Covid hotspots geographically, one would find that they map fairly well onto geographical centres with meat plants. There is a more general point to be made, though. According to traffic data, it looks like twice as many people travel to work now as did during the first lockdown. It is the main reason people are leaving their houses and interacting with others, thereby getting and spreading the virus. The Government has been at pains to underplay this element. At some stage, the Tánaiste told our committee - he later retracted this - that people were safer at work than they were at home, the idea being that the virus somehow generated by itself at home.
I have a few questions for Dr. McGuinness. If I am a worker and I consider that my employer is not essential but is open nonetheless, can the HSA do anything for me in terms of getting the employer shut down?
Dr. Sharon McGuinness:
That is fine. I am sorry, I was expecting a list of questions and to respond at the end.
What is an essential service is listed by the Government as part of the various roll-outs and plans. We do not have a specific role in determining what is open or not at any one time. That is a Government decision based on public health advice. If a business is open but is not essential or providing an essential service in line with the list provided, the Garda has responsibility for closing it down. Obviously, we get complaints in this regard. We advise people in response and engage with the Garda as appropriate, but we do not have a duty in respect of what is open or deemed essential. However, we would inspect any open business in terms of its Covid responsibility under the protocol.
Let us say that I am in a workplace that asserts it is essential and I, as a worker, do not dispute that. During the first lockdown, I was able to work from home safely and was permitted to do so. During this lockdown, however, I am being compelled by my employer to go to work, as is the case for many workers. If I approach the HSA and say that it is not right, fair or in line with the Covid guidelines, can the authority do anything for me? Can it investigate whether I could be safely working from home and the employer was getting me to travel unnecessarily?
Dr. Sharon McGuinness:
Under the protocol and Government advice, it is clear that if people can work from home, that is what they should be doing. That has been the advice throughout the pandemic. Any worker who has concerns can get in touch with our workplace contact unit. We will respond to any complaint and provide support as appropriate. If a worker has a concern, we can examine the matter and contact the employer to reflect that concern. Ultimately, however, it is a discussion and, aside from contacting us, the worker may be able to bring it to the attention of the lead worker representative and others in the workplace. The decision as to what is open or essential is not one on which we have the ability to make a call. However, we can support the worker through advice and guidance.
Let us get to the bottom line. Let us forget about the question of essential. The issue is that I as a worker was allowed to work from home during the first lockdown and can safely do so, but as appears to be the case for many workers, I am being compelled this time around to go into work. The HSA has advised workers that it is at their employer's discretion whether they return to work, given that the Return to Work Safely Protocol has been developed to ensure a safe return to work for all staff. Is it not the case that the HSA can effectively do nothing for me? It cannot force, fine or inspect an employer that is not allowing workers to work from who could be safely doing so.
Dr. Sharon McGuinness:
If they are working from home, there are requirements around home working, which fall under our health and safety responsibility. As such, we would have to consider that. If we receive a complaint about issues in a workplace that is open and operating but where the worker feels he or she should not be there, we can carry out an inspection to determine whether systems are in place to enable the worker to work safely. The question of whether the employer should be open or making people come to work is for the employer and the employee. We and the Government are requesting those conversations to be had and all sides to support that process.
Dr. Sharon McGuinness:
Working from home is ultimately at the discretion of the employer in conversation with employees. We have the protocol to push discussions between employers and employees and to have lead worker representatives put in place so that those discussions are held and addressed appropriately within the workplace.
How are we a year into the pandemic with many workers being compelled to travel to work unnecessarily, thereby undermining the efforts that we are all making, yet the HSA does not have the authority to do anything about it? As far as I can tell, no other body has that authority either. Surely the HSA should be given the power to conduct inspections where workers could be safely working from home but are unnecessarily being compelled to go to work and to fine employers that are doing this.
The HSA is ensuring that systems are in place in terms of people being as safe as possible when they are at work. That is good and I am all for it. I received a response on this matter from the HSA's head of communications a couple of months ago. As far as I understand, the authority cannot do anything about workers being compelled to work in the workplace rather than from home.
Dr. Sharon McGuinness:
We can look at an employer's policies on working from home. That is a key aspect of the protocol. In many cases, we examine and discuss employers' policies around particular elements of health and safety. In that regard, we look for their policies on working from home. Even in their Covid response plans, we expect to see an emphasis on the promotion of working from home. It can be challenging, though. The conversations between employers and employees as to what is essential and who should be at work-----
If the HSA concludes that a worker who worked from home previously but is not doing so now should be allowed to work from home again, what can it do to an employer who is unnecessarily compelling workers? Can it fine or doing anything to an employer?
I thank the representatives from the HSA, HSE and Congress for their submissions and for participating in the hearings today. I very much support the Bill. The INMO, Congress, SIPTU and others made clear last year their express desire for this amending legislation and they indicated there is a serious deficiency with regard to the reporting legislation. I have three specific questions. The first is for the representatives from the HSE. I want to understand better what happens when there is a report of Covid-19. What are the criteria for deciding to assess the sequencing of the genes where there is a presentation with Covid-19? It was stated it is sometimes possible to link a healthcare worker infection with the workplace with great confidence based on the sequencing of the genes. In what cases does this happen? Does it happen for all workplace outbreaks? Does it happen for outbreaks in the community? Are there set criteria?
My next question is specifically for the representatives from the HSE. Is the reluctance on the part of the HSE with regard to this Bill related to the resources required to undertake the additional work on gene sequencing of the virus?
Mr. Nick Parkinson:
I thank the Senator. I might hand over to my colleague Professor Cormican to provide further information on this. The Senator stated she wants to gain a better understanding. Safety and the reporting of incidents are matters we take very seriously. We have strongly promoted this within the HSE because we find information is power and that the more information we have, the better we can manage the risk. We treat Covid not necessarily as an illness but as an occupational hazard. We manage it in the context of health and safety legislation as well as infection control legislation.
Regarding the reporting procedure where there is a case, we first get the full details of the case. The manager would get the details to fully understand what has happened and report them on the national incident management system, which is our internal reporting system. As part of the data-collection and investigation process, the manager would refer to an algorithm we have developed to make a decision as to whether we feel the infection is occupational. Once the manager has made that decision using the algorithm, we make a report to the HSA, if appropriate.
As I said in our opening statement, we do collect the data and we are certainly not resisting in any way the collection of data on the Covid incidence. We feel there is good machinery already in place for the reporting of the Covid incidence. I hope that answers the first part of the Senator's query. If Professor Cormican is still on the line, could I hand over to him to discuss the question on gene sequencing?
Professor Martin Cormican:
Sequencing is resource intensive. The capacity of Ireland to do sequencing has increased greatly over recent months but it does require resources. At the moment, where there is an outbreak in a healthcare or hospital setting, we recommend that the sample from the first case be sent for sequencing if it is suitable for sequencing. There are technical requirements to be considered. Sometimes samples cannot be sequenced for technical purposes and then additional samples are used as required. A judgment is made as to whether the sequencing is likely to be informative. As Mr. Parkinson said, all the circumstances are taken into account, after which a question arises as to whether sequencing would be useful. No country would have the capacity to sequence all the viruses at the moment, to my knowledge. Our capacity is probably similar to that of other countries but it is used selectively where it is likely to be informative. The comment made in our statement was more by way of explaining that in certain circumstances one can be very confident the virus was acquired at the workplace. For example, if a group of patients in a ward or nursing home are all infected with virus with a specific genetic sequence and the exact same fingerprint is found in the workers on the ward, it puts it beyond all reasonable doubt that the infection is workplace related. That, however, would not be done universally in any setting. It is helpful in some cases and in others it is not. Sometimes there appears to be a relationship with the workplace but when one looks at the genetic fingerprint, one finds out it is not connected to the workplace because the fingerprint is distinct. Sequencing is not done routinely but selectively. It is useful but not useful in isolation. It is not used in isolation but it is used, as Mr. Parkinson said, in the context of all the other circumstances.
I thank the representatives for that comprehensive answer. I am conscious that I probably have very little time left in my slot. I have a question each for the representatives of the HSA and Congress. With regard to the HSA, it was stated that a number of workplaces are open and that it is hoped a much larger number will be open in the coming weeks and months. I note the representatives' concerns about the Bill and what they called the onerous responsibility on employers with regard to it. I want to understand the sense that the HSA feels the legislation will be onerous on itself. One inspector was taken on by the HSA in the second half of 2020 and one was taken on in 2021. I understand two are being recruited. Is there a resource issue in the HSA resulting in its reticence and concerns relating to this Bill? I thank the Congress representatives very much for attending today.
My question specifically for Congress is to ascertain the impact on workers if there is a failure to make progress on this Bill. Serious concerns have been articulated by Congress. I want to understand what message it would send out and the impact on workers.
Dr. Sharon McGuinness:
I thank the Senator for the question. The HSA has resources assigned for reporting under the biological agent regulations and, indeed, for assessment and analysis of the weekly reports from the Health Protection Surveillance Centre. In that regard, we have assigned resources. If any reporting system is put in place, we will make sure the reporting requirements are put into play. For example, much of the current reporting on accidents is already done online. We would be doing something similar to reduce the burden on both ourselves and others who have also to report.
We are in the process of recruiting. We got €4.2 million from the Government last year for additional resources and we have got sanctions for significant numbers of inspectors. We are currently in the process of recruiting those. Resources may be challenging in the short term but, as with every aspect of Covid, we have prioritised our work to make sure we are able to address Covid whenever and however we can in that regard.
I will hand over now as I do not want to go over my time.
Dr. David Hughes:
The biggest damage it will do is discredit the Act in the eyes of many workers who see their requirement to be protected being relegated again to the "workers can wait" mantra. That is the difficulty with it. I think the regulatory impact assessment, RIA, going through the HSA will take so long that the Covid emergency may well have passed and workers will feel the Act will not have been used to protect them. I think that opinion is fairly widespread within the workforce. Remember, 19 workplace infections and the economy is practically closed. The figure is 16 in healthcare-related activities and that is last week.
I will not be too long. I thank all the speakers for coming here today, and for their presentations and comments on Deputy O'Reilly's Bill. The Bill opens up discussion about the progress which needs to be made in reporting Covid cases, working conditions in certain workplaces, and the need for statutory sick pay. I understand from the witnesses' presentations that there are three different ways of reporting cases for which the employer is responsible. How quickly can an employer report a case and what is the actual process of reporting? Reporting of Covid cases needs to be done in a time-sensitive manner and we need to ensure there is no unnecessary bureaucracy involved.
My main point is about sick pay. The safety of workers and wider society is the priority here and I think we all agree on that. However, it would be naive not to acknowledge many workers in workplaces, such as meat processing plants, do not have sick pay schemes, which could deter them from reporting their symptoms or getting tested for fear of being without a salary for weeks and not being able to make ends meet. The solution is clearly the introduction of statutory sick pay, which I believe is currently being progressed and reviewed by the Tánaiste. However, I want to hear from the witnesses about their engagement with workers and whether they think this is a contributing factor to clusters and levels of Covid cases. What can potentially be done in the interim period? I invite the three witnesses to give their opinion on sick pay.
Dr. David Hughes:
I will come in on behalf of ICTU on that question. The Deputy is correct in that the absence of an immediate sick pay, particularly during the pandemic, is a real problem. Workers on very low incomes are in a massive dilemma because they will be without income if they report symptoms. There is a big problem with the suppression of the virus and the information that would lead to controlling the virus in the absence of sick pay. We are long overdue a proper sick pay scheme for workers.
Dr. Sharon McGuinness:
From the authority's perspective, in a sense we do not have a responsibility for sick pay. This is about anything that protects the workers and makes them feel comfortable not going to work. The advice is that anyone who has symptoms of Covid should not go to work because it protects not only himself or herself but also the other workers. That advice is very clear. The systems in place to enable that and to protect the worker by allowing him or her to stay at home while sick are vitally important and obviously sick leave is part of that.
There were some comments made earlier and to be clear, the protection of workers is our ultimate concern. We already have three reporting systems, which gives us quite a high level of information on what is happening in workplaces. Not all of them are coming directly from the employers but that does not prevent our organisation from taking the necessary steps to support and prevent, and protect our workers from Covid-19 in the workplace. We are mindful that any reporting system is just one part of our extensive set of approaches that we use at all times. We are not waiting for a report in order to act at any stage in that regard either.
Dr. Lynda Sisson:
To echo the HSA, the HSE does not have a responsibility for sick pay either. However, we actively discourage workers with symptoms from coming to work for the reasons outlined by the Deputy.
I welcome the guests and thank them for their time. This is an important Bill. Sick pay is really important in a general sense because there is much that can be done around sick pay. In relation to this Bill specifically, Covid-19 is already a reportable disease under the biological agents regulations. As the witnesses have said, there are a few different ways to report it. Covid-19 can be acquired in any setting and it cannot always be reliably associated with a work activity. In some cases, such as meat factories, it is clearly to do with the setting while in other settings it is not so clear. What is the story with the regulatory impact assessment initiated by the board of the HSA? I do not know where that sits at present When will it be completed and when can we look at it? It was on that basis of seeing what the outcome of that would be that they were going to wait and see about this Bill. On its completion, it will be considered by the board of the HSA and the next steps would be discussed with the Department. Do the witnesses know what is happening with that or have they answered that question already? A regulatory impact assessment initiated by the board of the HSA to assist in the consideration of a potential amendment requiring employers to report cases of Covid-19 that are attributable to work activity, to the HSA is ongoing. I wonder about its status..
Dr. Sharon McGuinness:
Yes, indeed. The RIA document is almost complete. We expect to receive the final version this week. That will go in the first instance to the legislative and guidance sub-committee of the board. It will be considered by the board at the end of April. It is almost concluded at this stage and we are just waiting to receive the final version this week.
I am done now. Deputy O'Reilly can have my time. I am finished now, I just wanted to find out the deadline and what was happening about that. What timeline did the witness give? She said it would be out next week but there are few other things to happen. What is the actual timeline?
This legislation has been in contemplation for several months, I think since before the RIA was instigated. Notwithstanding that, I believe there is value in this debate, and I thank everyone for participating this morning and in using this to move forward. This was something that was raised by the Irish Congress of Trade Unions with the Minister a year ago. It has been raised again and again, repeatedly. This proposed legislation ensures the change will be made rather than waiting, which is the alternative. That indicates where it came from. Obviously, we will consider any result from the RIA and all information is very welcome, but I felt there was a need, as others did, to progress this on the basis that there did not seem to be any progress being made.
From my perspective, the rationale was to ensure that it becomes a notifiable disease as quickly as possible. We did not want to hang around or wait, but these things unfortunately take time. Naturally, the result of the RIA will inform any future deliberations on this.
It used to be, but the regulations were changed in 2016. I cannot remember the exact wording that was removed because I am after putting my notes out of sequence. It is not currently, however, and that is why. The other issue is that-----
Dr. Sharon McGuinness:
To be clear, Covid-19 is a notifiable disease in the Infectious Diseases Regulations, which are obviously Department of Health legislation. That is where we get our weekly reports from the Health Protection Surveillance Centre. What Deputy O'Reilly is talking about, and what this Bill refers to, is occupational illness being reported directed to the authority, that is, under our occupational health and safety legislation. It is not currently there other than under the biological agents regulations for specific work with the virus.
I thank all the witnesses. It has been a really useful discussion. I will take up from where the previous conversation finished, that is, with the issue of why the regulations changed in 2016. I think members of the general public will be genuinely quite shocked to hear that right now there is no obligation on employers to notify the HSA of Covid-19 cases. I wish to drill down into this. I will direct my first question to Dr. McGuinness. I thank her for her presentation and her patience this morning. She said that the issue with changing the regulations was the low number of accidents reported. That was the HSA's understanding at the time. The upshot of that issue was that the HSA decided to exclude disease from the definition of workplace accidents. How was that supposed to improve the reporting of accidents?
Dr. Sharon McGuinness:
I thank the Senator for his comments. To be clear, the amendment was driven primarily at the time by the low numbers of accidents reported. There are two separate issues because we were looking not only at the accident reporting but equally at the reporting of occupational illness. As for occupational illness, as I think I said earlier, there was no defined list of occupational illnesses either in European or national legislation and, therefore, it was felt there was a challenge. As part of the regulatory impact analysis, which was considered by the board at the time, it was felt that it was not clear-cut that an employer would be able to identify with any degree of certainty what an occupational illness was. Very often an occupational illness, and indeed illness or disease more generally, is referred back to the causative agent. That can be a chemical or biological agent or whatever, which is why something like the biological agents regulation is important. It identifies the causative agent of the disease rather than the disease itself. It therefore protects the worker from the agent itself in the first instance in order that no disease is caused in that regard.
Dr. Sharon McGuinness:
If it were determined as a biological agent in that regard, it could potentially be. Again, however, if it had come in and there was just a prescribed list of occupational illnesses, it would have to be identified on that in order to give guidance and clarity to employers as to what is reportable and what is not, as the case may be.
Would Dr. McGuinness like to comment on the fact that European countries have seen fit to regard Covid-19 as an occupational illness? They seem to have had no difficulty doing so. Dr. McGuinness may have seen the addendum to the ICTU presentation, which showed the European Union of Medical Specialists making reference to the need to make Covid an occupational illness. What is the particular difficulty Ireland has that we cannot adopt best practice being adopted across the rest of Europe, given the context of a pandemic and the more than 4,000 lives we have lost?
Dr. Sharon McGuinness:
As to what is happening across Europe, the biological agents regulations come from the European directive, and that was amended. That is what all member states will put into force in their countries. We have looked at this and have talked to colleagues across Europe because we are in various committees and working groups with them. Many member states are doing similar in that they are identifying Covid as a specific illness for particular sectors. That is derived directly from the biological agents regulations, which we all have to transpose and implement in that respect. It is a challenging one, and across European countries very often the issue is still driven by public health. Again, the nature of the reporting systems in place in countries is driven by the fact that there are different systems in place, not just necessarily under occupational health but in general reporting as well, so they are all interconnected. We are very much in line with the majority of the member states that have looked at this as a specific illness in the context of specific sectors such as healthcare.
Perhaps we will try to tease this out with a real-life example because I am still struggling with this a little. Let us take a meat factory and two workers. The first worker contracts Covid in the community, at home. He goes to work because he is asymptomatic and then, unfortunately, passes it on to a second worker. What are the obligations of the employer in this example? Does it have to report both people to the HSA as having had a workplace illness of Covid, neither or one of the two?
Dr. Sharon McGuinness:
In the first instance, if anybody catches Covid, it is obviously a public health matter. That would all be done as part of the public health regime and would be reported as part of the CIDR database through the medical officer of health in that regard. In respect of reporting, meat plants are not working directly with viruses as it is and, therefore, the reporting would not come necessarily directly to us. As I have said already, however, we already know all the cases of-----
Yes, but with respect - and I apologise for interrupting Dr. McGuinness but I am just very short on time - have we not just highlighted why there is a major problem with how this works, or indeed does not work, at the moment? What Dr. McGuinness is actually saying is that in a case in which one worker introduces Covid into a factory unknowingly and a further worker then gets it - and that, of course, is how clusters build - at the moment there is no obligation on the employer to report that to the Health and Safety Authority.
Dr. Sharon McGuinness:
That is why we are doing the regulatory impact analysis - to make sure we have the right reporting regime in place. As I said earlier, however, the reality is that there are three reporting regimes already in place and we are looking at a fourth - and discussing a potential fifth one here - so there are systems already in place that we can avail of to know where those cases are such that we can address them appropriately.
Dr. Sharon McGuinness:
They would because on the CIDR database, for example, which is sent weekly, we know from that information the exact workplace, the location and the number of cases, so we have that information to hand. If it is an outbreak, very often in meat plants we will be involved in the outbreak control team set up by the departments of public health to support them in the management of the outbreak. In addition, as part of the national standing oversight committee, we get the list every week of all the outbreaks in meat plants, construction sites and other high-risk sectors.
Yes, but there is a problem here, is there not? What Dr. McGuinness told us two minutes ago is that there is no obligation on the employer to report the two cases in the example I gave her. That appears to me to be a major gap. How does it make sense for employers not to have an obligation to report employees with Covid in the workplace?
That question is for the HSA.
Dr. Sharon McGuinness:
Regarding the employer role, let us step back to consider the fact that there is a pandemic and Covid is an infectious disease that can be transmitted as much outside of the workplace as inside it. The most robust system, therefore, for tracking Covid in anybody, whether a worker or someone else, is the public health infectious diseases requirement and reporting through the CIDR database. Even if an employer does not report directly to us and whether there is legislation requiring that, we still have access to all of that information to enable us to identify particular workplaces and sectors where there are issues arising.
Dr. Sharon McGuinness:
The burden is to report it and go online, as would be the case with an accident. We have a system in place for that under the biological agents regulation. We have allowed people to report issues in as streamlined a manner as possible. Again, they would have to get all of that detail together and put it in one place. The driver for anybody in the midst of an outbreak or case of Covid in a worker is to suppress and prevent the further spread, not just in the workplace but also in the community.
I want to pick up on a point made by Senator Gavan regarding the administrative burden. I am not in any way convinced that this will place a massive administrative burden on employers. I am a small bit concerned that perhaps the HSA would come in and say this on the basis that employers can answer for themselves. Indeed, they have made a submission.
In terms of the practicalities of the administrative burden, there is already an online system. Reporting a Covid case would feed into the same system. When one thinks about what is considered an administrative burden, one probably thinks about people drowning in loads of paperwork. In fact, it seems that the HSA has gone to considerable effort to streamline this process, and fair play to it for that. Presumably if the amendment was passed, it would mean that another illness would be added to an existing process. Am I correct in thinking that?
Dr. Sharon McGuinness:
As I said, we use an online process. The administrative burden is not solely somebody entering data on a sheet of paper or sending them into us; it is in addition to that. Every case of Covid has to be looked at in the context of it being attributable to a workplace. Even if there is an amendment, as we have discussed, the reality is that it still has to be attributable to work. The employer needs to be assured, therefore, and perhaps take the time to assess, whether an employee contracted Covid in the workplace as part of his or her work activity rather than contracting it outside of work and bringing it in. That is probably where the bulk of the administrative challenges lie for employers.
That is a very worthwhile endeavour Proactively interrogating the circumstances surrounding an employer contracting a disease like Covid-19, and being required under legislation to do so is something an employer would actively pursue, benefit from and want. It does not appear that the administrative burden would be so large as to discourage an employer from doing that. The information and exercise of collating that information would be extremely valuable.
Dr. Sharon McGuinness:
They are doing that through the public health system in the sense that they work with public health officials. As I have said, public health has the duty, first and foremost, to manage that outbreak, wherever it is, and work with an employer and representatives, as appropriate, to suppress the outbreak. That has and is being done as part of that work. The data that come to us have been through that process.
I understand that. It crosses over with the argument that this is an additional administrative burden if Dr. McGuinness is in a position to say it is already being done. She can see why we are struggling with that concept. Employers will have to do something they are already doing. She said all of the information is already available, albeit without an obligation to report directly to the HSA, and, on the flip side, there is an additional burden. That argument seems to be counter-intuitive.
A fourth source of information is currently being contemplated. I presume if barriers exist in terms of an additional burden that will be the same if the recommendation comes out. I do not find that argument convincing.
I have some brief questions. Who is preparing the RIA? Is it somebody in the HSA?
I want to go back to the point I made on what the HSA said, namely, that there is no counter-obligation on employees to provide detailed confidential medical information to their employer. Congress officials seemed to contradict that and have said there is. If the HSA is correct, an employee could be in the workforce with Covid. As Deputy Duffy said, he or she might not want to tell people he or she has it and could be spreading it.
I would like to get to the bottom of an important matter, namely, whether there is a legal obligation on employees to tell an employer or their colleagues that they have Covid. The HSA might say a bit more about the GDPR implications in that regard.
Something struck me. The reports from CIDR and the HPSC are issued weekly. Is that a long period before information is received? We get daily reports from the Department and others. The HSA receives information on a weekly basis, but an awful lot can happen in a week.
As far as the HPSC reporting is concerned, can Dr. McGuinness tell me exactly how a workplace is identified? Are those data captured initially from the person who presents to a doctor and then has a positive Covid test? Does the workplace information state that a person works in a particular workplace? Is the information passed on at that stage?
Dr. Sharon McGuinness:
I will do my best. KPMG has supported us in the development of the RIA process.
In terms of the report, we receive that information on a weekly basis. In terms of weekly reporting it involves about five working days and is fairly flexible. We also continue to have access to what is online, etc. Numbers across the board are published on a daily basis for workplaces and community transmission. The HPSC reports, which anybody can view on its databases or website, show that it breaks down cases across nursing homes, hospitals, education, etc., and there is then a catch-all group called "workplaces", which is broken down into construction, food and meat processing. We get all of that information. Within each of those categories the specific location of the outbreak is identified, whether that is the name of a hospital, factory or whatever. We have that information alongside the caseloads in that regard.
I refer to the point about the worker. There is an obligation in that regard.
Obviously, we are all duty-bound when we work with each other to work safely and healthily together and to inform people if there are any measures in respect of which, perhaps, the group health and safety would be at issue. However, as we all know, when it comes to medical issues, people perhaps want to keep some of that information to themselves and there is a level of sensitivity in personal information in that regard, so it is challenging.
The other point is that Covid is a challenging disease. We all know that. However, we can see, through the numbers and reports by NPHET on many occasions, that the reality is that there can be as many symptomatic as asymptomatic people in the workplace. That is a challenge because in essence the reporting and identification will only happen with those who are symptomatic. Again, that could be equally challenging. We would say that through engagement between employers and employees, everybody should be working to prevent Covid coming into and spreading in the workplace. Those who are in any way sick should stay at home to stop the spread and should inform their employers. The other point is that if a worker is tested, the information goes into the public health CIDR system.
We have run out of time so we must conclude. I thank all involved for their contributions in the consideration of this matter. In particular, I thank the officials from the HSA, the HSE and ICTU. I apologise for the way in which we had to intervene at times during the meeting because of the Covid time restrictions. I thank the witnesses for participating and assisting the committee in the examination of the Bill. The committee will give further consideration to the matter as soon as possible. I thank the members for their participation in the meeting under the exceptional circumstances necessitated by the public health emergency caused by Covid-19. I wish everyone a happy and safe Easter. Go raibh maith agaibh.