30/06/2021 Briefing

The May Protocol is a revised version of the Work Safely Protocol published in November 2020 (the “November Protocol”) (see our client briefing on the November Protocol here).  As with the November Protocol, the May Protocol contains a non-exhaustive list of measures to be implemented in the workplace to manage and reduce the risk of COVID-19 in the workplace.

While it retains many of the measures contained in the November Protocol, including the implementation of a COVID-19 Response Plan and the appointment of a Lead Worker Representative, the May Protocol has been updated to reflect the most recent public health advice, most notably the public health guidance announced by the Government in April 2021 under the Government’s Resilience and Recovery 2020-2021: Plan for Living with COVID-19.

Key new measures introduced by the May Protocol are set out below.

Infection Prevention and Control (“IPC”) Measures

The May Protocol retains the comprehensive list of IPC measures that employers and employees should implement as outlined in the November Protocol, including hand and respiratory hygiene, social distancing, mask wearing, respiratory etiquette, physical distancing and pre-return to work measures.

However, the May Protocol acknowledges that some employers are considering the implementation of additional IPC measures to facilitate the safe return of their employees to the workplace.

Antigen Diagnostic Tests (“ADTs”) and Rapid Antigen Diagnostic Tests (“RADTs”)

The use of ADTs and RADTs has significantly increased in previous months, as society, including certain workplaces, re-open. The tests are used to detect the presence of a specific antigen or protein of the COVID-19 virus in a person and can therefore provide an effective mechanism to detect the presence of the COVID-19 virus in the workforce.

The May Protocol explores the practical and technical steps employers should consider before establishing an ADT or RADT regime in the workplace. These include:

  • establishing whether an internal or external RADT regime is appropriate for the organisation, having regard to the resources available and the administrative burden required to implement such a programme;
  • completing an occupational health and safety risk assessment to include the implementation of a RADT regime in the workplace;
  • reviewing a RADT manufacturer’s product information to decide on the most appropriate RADT for the testing regime;
  • agreeing and establishing policies and procedures to deal with employees who do not wish to partake in the RADT regime, and to deal with the management of positive cases;
  • ensuring staff are appropriately trained to ensure any RADT tests are undertaken in a competent, safe and correct manner; and
  • ensuring all personal information collected is maintained in line with GDPR requirements.

Employers are advised to exercise caution when considering the establishment of such an ADT or RADT programme.  In the first instance, antigen tests are limited in their usefulness insofar as they simply detect the presence of a specific antigen of the COVID-19 virus in a person.  The May Protocol notes that they should not be used as a “green light” for the re-opening of the workplace.  Furthermore, employers should ensure that all other IPC measures, such as hand hygiene, social distancing etc. remain in place.

Employers should also have regard to employer-employee relations when considering the implementation of any testing regime.  The May Protocol notes that the implementation of a testing programme, if appropriate, should be done as part of the employer’s COVID-19 Response Plan.  It should be done with the input of and in consultation with the Lead Worker Representative (as nominated under the organisation’s COVID-19 Response Plan), the Safety Representative, the employees themselves and any union representatives.  Furthermore, any such regime should be voluntary – employees cannot be compelled to partake in it.

It is evident that the decision to implement a RADT regime should not be taken lightly, having regard to practical, technical and financial considerations.  That stated, any such testing regime can, in the appropriate circumstances, offer reassurance to employees and play an effective role in the management and control of any risk of infection in the workplace.

Vaccination

In the context of the National Vaccination roll out, the COVID-19 vaccine plays a significant role in relation to the management and control of COVID-19 in the workplace (see our client briefing here on Vaccinations and the Return to the Workplace).

While the decision to get the vaccine is an employee’s own individual choice, the May Protocol notes that employers may wish to provide advice and information to employees in order to allow employees make an informed decision.  Effective communication in relation to the vaccine can be a useful mechanism to encourage employees to consider the vaccine, and ultimately increase the uptake.

The May Protocol also addresses employers’ obligations under the Safety, Health and Welfare at Work (Biological Agents) Regulations 2013 and 2020 (the “Biological Agents Regulations”).  Employers have an obligation under the Biological Agents Regulations to offer employees a vaccine (where an effective vaccine is available) in circumstances where a risk assessment identifies a biological agent as an occupational hazard. If an employee refuses the offer of a vaccine, the employer must consider other alternatives such as whether the employee can safely carry out the work without the vaccine, or whether the employee should be redeployed.

It should be noted that the May Protocol expressly states that it contains general advice relating to the Biological Agents Regulations, however, the vaccine roll-out is “currently a matter for Public Health and not the employer.” Notwithstanding the significant impact the widespread vaccination of a workforce can have, the May Protocol cautions that all IPC measures should remain in place in the workplace, even when employees are vaccinated.

Occupational Health and Safety Measures

The Occupational Health and Safety measures recommended by the November Protocol, and outlined in the May Protocol, include measures to deal with reporting of a positive case, responding to matters requiring first aid and protecting the mental health of employees.

However, in line with recent public health advice, the May Protocol now addresses the fundamental role that proper ventilation has in controlling and reducing the risks associated with COVID-19 in the workplace.

Ventilation

The primary aim of ventilation is to minimise the transmission of the virus by maximising the “fresh” outside air in the workspace.

In assessing and improving the ventilation system of a workplace, employers should have regard to their statutory obligation under the Safety, Health and Welfare at Work (General Application) Regulations 2007 to ensure that there is an adequate supply of fresh air in enclosed areas in the workplace.

On a practical note, the May Protocol advises employers to develop a workplace risk assessment to analyse the current ventilation systems, with the priority being to first identify any areas in the workplace that are occupied and poorly ventilated.

The May Protocol notes that adequate ventilation can be achieved through either natural means (such as the opening of windows), or through mechanical means (such as a ventilation system).  Adequate ventilation can be achieved through improving current ventilation systems in a given workplace as distinct from requiring the installation of new ventilation systems.

Conclusion

Employers are advised to read the May Protocol in full to ensure their COVID-19 Response Plans are fully updated and take account of all appropriate and necessary measures to facilitate the safe return of employees to the workplace.

The May Protocol is subject to change to reflect developments in public health advice, and employers are therefore advised to be alive to further developments before and on the eventual return of their employees to the workplace.