COVID-19 COMPLIANCE UPDATE FOR SCOTTISH HOUSING AND PROPERTY SECTORS

 

It is now some 6 months since ACS and EVH launched the COVID-19 portals on our respective websites and it is fair to say that few of us anticipated a situation in which, half a year later, we would still be seeing such uncertainty. Yet, uncertainty and instability has become something of a theme in recent months, and particularly since different geographical areas started to follow different paths out of the lockdown - firstly across the devolved nations and more recently at a local level with certain restrictions applying only to specific postcodes.

 

In Scotland as a whole, our current position on the ‘Routemap’ prepared by the Scottish Government (to gradually ease restrictions after lockdown) remains at Phase 3. In order to enter in Phase 4, which is trailed as allowing life to go back to ‘normal’ (although it is widely accepted that a post-COVID ‘normal’ will be somewhat different to our old working and social lives), the virus requires to remain suppressed to very low levels and should no longer be considered a significant threat to public health. Many commentators now believe that these criteria are unlikely to be met until effective drugs to treat or prevent transmission of the infection (or both) have been developed and distributed on a large scale. Consequently, it could well be some months (or even years) before we reach Phase 4.

 

In the meantime, we have seen a certain easing of Phase 3 restrictions such as the ‘shielding’ status being paused, meaning that all those previously being asked to shield are now subject to the same protocol as the rest of the population. Such individuals can return to work, for example, although there is a strong recommendation for them to work from home where possible and individual personal risk assessments should be carried out. Specific guidance is also now available for more commercial sectors (e.g. hospitality and leisure) and social interaction is the subject of regular and close scrutiny at local levels, with ever-changing restrictions and guidance on lifestyle habits and interactions with family and friends. And, of course, the heralded ‘track and trace’ Apps are now fully up and running viz. The NHS Covid-19 App in England and Wales and the Protect Scotland App in Scotland (see www.protect.scot for for information).

 

Many organisations are, of course, more interested in the permitted reopening of ‘non-essential offices’, which would allow more employees to get back behind their desks as opposed to the current default position of ‘working from home’. The much anticipated target date for this was originally 1st of August 2020 and the Scottish Government, after having postponed this once, is not being drawn on when it can now be expected and there is no realistic expectation that it will happen any time soon.

 

It should, however, be noted that ‘essential activities’ which cannot be completed from home may legitimately be carried out in the office. This does require some judgement as to what constitutes ‘essential’ and also whether or not these activities could realistically be carried out at home and it is recommended that in such cases a clear record is maintained to demonstrate the decision-making process.

 

It is also important to remember your risk assessing obligations, irrespective of where work is being conducted. In addition to the traditional assessment of health, safety and welfare related hazards and risks (e.g. general risk assessments), employers should now consider COVID-19 compliance arrangements both in the office and in relation to site work as well as the new home working related considerations that may not have been covered by historic policies and procedures. One of the key topics to tackle for home workers is the use of Display Screen Equipment (DSE), normally by way of a ‘DSE and workstation risk assessment’. This is particularly important as ever more employees start working from laptops (which are not designed for prolonged use), balanced on inappropriate sufaces and sitting on unsuitable chairs! A range of building and facilties related hazards (e.g. gas, fire, Legionella, air handling systems, etc.) may also require to be addressed where premises have lain empty for some time, as illustrated by a recent statement from the HSE: “Recent cases of Legionnaires’ disease in the Midlands are a powerful reminder that employers, the self-employed and people in control of premises (such as landlords) have a duty to identify and control risks associated with legionella.

 

The primary aim of assessing risk, devising appropriate control measures and complying with relevant guidance should always be to protect life and limb. However, there are also good governance reasons for doing so. The HSE is continuing its programme of spot-checks on businesses and those seen to be non-compliant may find themselves on the wrong end of a Prohibition or Improvement Notice and/or a fixed financial penalty. Organisations still refusing to comply, or where the breach warrants it, may also face prosecution or fines up to the statutory maximum of £10,000.

 

Despite the constantly changing landscape, the ACS COVID Compliance Team has put together a collection  of Frequently Asked Questions from some of the many information requests we have received via the Member’s H&S and Landlord Compliance Helpline. Hopefully these will be of some use but please do feel free to contact us on info@acsrisk.com if you would like any further information or to request assistance with your COVID-19 compliance plans or risk assessments.

 

Good luck and take care.

 

Martin, Roger and the ACS Team

 

 

#1      What do we need in place to allow employees back to work?

 

First and foremost you must be able to demonstrate that the COVID-19 risks have been adequately assessed and suitable control measures developed, implemented and communicated to relevant employees. Essentially a COVID-19 Risk Assessment will normally be the starting point, although some organsiations may prefer to develop this into a range of strategies, work procedures, training programmes and ‘RAMS’. RAMS simply stands for ‘risk assessment and method statement’ and is a generic term to cover a written safe system of work (procedures), based on a risk assessment. This type of approach is now quite common for addressing COVID-19 compliance as it can offer an easy-to-follow document for each of the key areas of work (e.g. office work / house visits / etc.)

 

Whatever route you take, it is important to be able to demonstrate that a robust risk assessing approach was taken, current guidance taken into account, clear and safe working procedures developed and all relevant staff trained in the new protocols. It is also useful to implement a monitoring and review regime to assess compliance on an ongoing basis.

 

#2      What is the ‘risk control hierarchy’?

 

This is essentially a means of addressing available control measures in the order of priority that best protects employees and helps you to comply with good Health & Safety governance. The hierarchy (or prioritisation order) can be seen in the chart below, which shows the preferred optipn would be to eliminate a hazard/risk altogether (e.g. do not do the task!) through to the use of Personal Protective Equipment (PPE) as a last resort. This hierarchy should be adopted in all risk assessing activities.

Covid-19 Risk Control Hierarchy

 

#3      Can office work resume if we have COVID-19 control measures in place?

 

In short, no – or at least not fully. No date has been set for the reopening of non-essential offices and the Scottish Government guidance remains clear that home-working should be the default position. There is some dispensation made for certain activities which are ‘essential’ for the operation of a business and need to be carried out from the office.  However, these are likely to apply to a limited number of employees and/or working hours, making it more likely that reduced office-based hours and people will continue to be seen for a while to come. In the event that you do consider office-based work warranted on the ‘essential‘ grounds, it is recommended that a clear record is maintained to demonstrate your decision-making process.

 

#4      What are the differences between sanitising, disinfectant, and antibacterial wipes?

 

It is important to appreciate that COVID-19 is caused by a virus (SARS-CoV-2) from the family of the Coronavirus. Bacteria are completely different organisms and, unless anti-bacterial wipes also clearly state their effectiveness against viruses, they should not be considered appropriate for COVID-19.

 

Typically, disinfectant wipes are impregnated with a disinfecting ingredient, such as ammonium, different types of bleach, or very commonly, a product called Benzalkonium Chloride (usually these wipes are marked as “no bleach”). These are very effective in eliminating virus (although the manufacturer’s instructions always need to be read as they may contain information on contact times etc.) but should not be used on the skin or on food products, etc. (note they may cause allergic reactions on the skin of some people).

 

Sanitising wipes generally refer to wipes that are impregnated in alcohol. These are not as effective as disinfectant wipes, but they are gentler on the skin and do not pose the same level of risk of allergic reaction. Sanitising wipes may be advertised for specific use on the skin or for hard surfaces.

 

In summary, anti-bacterial wipes should not be used (unless clearly stating their effectiveness on viruses as well as bacteria), disinfectant wipes are effective but not suitable for skin or on food products, sanitising wipes are acceptable for hands and surfaces but normal hand washing is preferable.

 

#5      Can we resume viewings and interviewing prospective tenants?

 

Yes, if done safely. These are now considered essential activities but do remember to carry out a risk assessment and implement appropriate COVID-19 control measures before re-staring these operations.

 

In accordance with the standard risk control hierarchy, the ideal option would be to eliminate the risk at source, which may be achievable by conducting interviews by video call. Where meetings in person are deemed important, minimising contact with potential infection sources would be critical and pre-meeting questionnaires are becoming commonplace to explore whether interviewees or people they have been in close contact with have COVID-19 symptoms or have tested positive. It may also be useful to know whether prospective tenants are ‘clinically vulnerable’ or ‘extremely clinically vulnerable’, as extra precautions may be warranted.

 

Non-statutory guidance for local authorities, social landlords and private rented sector landlords has now been published for contactless lettings. Some of this is, however, somewhat basic and you should be prepared to go further than the examples given. This can be found here allocations guidance.

 

#6      Can employees share a vehicle?

 

The Scottish Government recently changed its advice on this point and is now asking the public to avoid car sharing with people outside their household or support bubble. This request also extends to work related travel and employers should be mindful of how their employees commute and travel on work business (both by private and organisation vehicles).

However, the Scottish Government has not yet forbidden car sharing and accepts that in some cases this option is unavoidable. In such cases, the following guidelines have been published:

  • share the transport with the same people each time
  • keep to small groups of up to 6 people at any one time
  • open windows for ventilation
  • travel side by side or behind other people, rather than facing them, where seating arrangements allow
  • face away from each other
  • consider seating arrangements to maximise the distance between people in the vehicle
  • clean the car between journeys using standard cleaning products – particularly clean door handles and other areas that people may touch
  • ask the driver and passengers to wear a face-covering

 

#7      Do we need to carry out statutory facilities safety checks?

 

In general, it is the view of the HSE that landlords are still responsible for maintaining compliance with legislation and standards which carry statutory inspection protocols. For example, Legionella risk assessing and associated monitoring should still be carried out, as should fire risk assessing and monitoring and best efforts should be taken to complete statutory annual landlord gas safety checks. However, some recognistion is being taken of the difficulty in securing competent gas service providers and Gas Safe Register has made the following statement:

 

Landlords should not suspend all gas safety checks at this time as it will unnecessarily put tenants at increased risk, particularly as people are spending most, and in some cases all, of their time at home. Each property should be considered on a case-by-case basis, completing safety checks where tenants permit access and gas engineers are available. If you are unable to secure the services of your usual engineers, you must make reasonable attempts to obtain alternative services. Where you cannot and resource has to be prioritised you can do so, considering factors such as (this list is not exhaustive):

 

  • the age and type of appliances;
  • previous maintenance/work carried out;
  • breakdown history;
  • the presence of CO alarms; and
  • whether the tenant is considered vulnerable for reasons other than the risk from coronavirus (COVID-19)

 

Where it is not possible to carry out a gas safety check, it will normally be enough to show that you took reasonable steps to do so. This should include records of communication with the tenant and details of your engineer’s attempts to gain access. You should seek to arrange the safety check as soon as all parties are available

 

Therefore, the message remains that all reasonable steps should be taken to comply with the full range of facilities and buildings related safety compliance measures. However, in the event that unavoidable circumstances prevent you from discharging your legal duties, detailed records should be kept demonstrating the efforts made.

 

#8      Should we suspend maintenance works until COVID-19 becomes less of a risk to tenants and tradespersons?

 

Not necessarily, as long as appropriate precautions are taken. According to the Scottish Government, landlords can suspend the ‘Right to Repair’ in certain circumstances and detailed information is available on this topic. However, the fact that most tenants now spend considerably more time at home is resulting maintenance and repair becoming increasingly important for their physical and mental health and a balance clearly needs to be struck here.

 

Risk assessments are, of course, required (detailing good hygiene and physical distancing measures) and a pre-visit questionnaire should be completed to ensure that no member of the household is self-isolating, showing symptoms, or has been in contact with a positive case of COVID-19. In the same way, the tradesperson must be well and not showing coronavirus symptoms and neither they nor any of their household should be self-isolating.

 

#9      Should employees wear PPE against COVID-19?

 

This question can only be properly answered as part of your risk assessment process (remembering that PPE should normally be used as a last resort), although in most housing situations the answer would be ‘no’. According to the HSE, PPE for protection against COVID-19 is generally only required for certain healthcare activities. In a non-clinical setting there is normally no need to provide any additional PPE over and above that which would have been required before the pandemic started.

 

However, if your risk assessment indicates that a significant level of contamination may be present (for example where unwell individuals have slept or where there is visible contamination with body fluids) then the need for additional PPE including respirators, aprons, gloves, etc. should indeed be considered. A proper COSHH (Control of Substances Hazardous to Health Regulations) risk assessment should be carried out for all such higher-risk work.

 

#10    How do we know if face coverings are suitable?

 

Firstly, it is important to note that ‘face coverings’ and ‘face masks’ are quite different items. The term ‘face mask’ normally relates to proper respiratory protective equipment (RPE) and surgical face masks. ‘Face coverings’ have no tested protection factor and are typically just cloth or disposable materials used to cover the nose and mouth.

 

Face coverings are now widely required in enclosed spaces, public transport and for customers in shops and supermarkets. These should be well fitted on the face and not touched other than by the ear loops. The hands should be washed or sanitised before and after putting on and removing the face covering.

 

Washable face coverings should preferably contain 3 layers: an inner layer of absorbent material such as cotton, a middle layer of non-woven material such as polypropylene and an outer layer of a non-absorbent material such as polyester or polyester blend. Some designs may only have the inner and outer layers, with a pocket to introduce a ‘filter’ as the medium layer. In these cases, the filters should be changed daily. One simple test suggests that if you can blow out a candle when wearing the face covering then it is not appropriate.

 

Disposable face coverings should be disposed of daily and washable face coverings should be washed daily, preferably in the washing machine at 60ºC for 30 minutes.

 

#11    Can we use the air conditioning unit?

 

In general yes, but you do need to minimise the risk of cross contamination between areas. The HSE has given the following guidance:

 

You can continue using most types of air conditioning system as normal. But if you use a centralised ventilation system that removes and circulates air to different rooms it is recommended that you turn off recirculation and use a fresh air supply.

 

You do not need to adjust air conditioning systems that mix some of the extracted air with fresh air and return it to the room as this increases the fresh air ventilation rate. Also, you do not need to adjust systems in individual rooms or portable units as these operate on 100% recirculation. You should still, however, maintain a good supply of fresh air ventilation in the room

 

Ventilation is now regarded as a key component in reducing transmission of the virus within buildings and the introduction of fresh air should be prioritised. Opening windows is the common approach but even in rooms with no windows it can help to keep the door open (other than fire doors) and open the windows in nearby rooms. In smaller rooms with limited ventilation it may, however be appropriate to minimise the number of occupants at any given time.

 

#12    What if our pool vehicles were due an MOT during the lockdown?

 

Vehicles whose MOTs expired on or before the 29th March 2020 or after the 31st of July 2020 require an MOT as usual unless either the owner or someone they live with has COVID-19 symptoms, or they have been asked to self-isolate by the NHS Track and Trace service. If the car tax is due to run out and the vehicle has not yet passed the MOT test, the vehicle should be registered as ‘off the road’.

 

Cars, motorcycles, light vans and other light vehicles whose MOTs were due from 30th March 2020 to 31st of July 2020 are entitled to a 6 month extension but owners must still keep their vehicles safe to drive. Note that if an MOT test is taken and failed before the 6 month extension ends, the vehicle will NOT be deemed safe to drive and the extension will no longer be valid.

 

#13    Do we need to provide toilet facilities for delivery drivers?

 

Yes. A joint statement from the DfT and HSE clearly states that work premises do need to provide welfare facilities for delivery drivers: 

 

HSE guidance states that drivers must have access to welfare facilities located in the premises they visit as part of their work. The responsibility in law to provide access rests with the person in control of the premises.”