Legionella: Where low occupancy poses water-borne risks
The focus of most organisations during this coronavirus pandemic has rightly been on the health and safety of employees and the general public in tackling the spread of the virus. As the ‘new normal’ settles in, and questions are asked about when we might return to work, organisations are advised to shift their focus from fire-fighting to business continuity planning and developing a strategy for the re-start of operations. This will ensure organisations are best placed to tackle current concerns, as well as to respond when the Government restrictions are lifted.
By Sarah Valentine, Senior Associate at Eversheds Sutherland.
Whilst those who can are advised stay away from work, we need to think about what is left behind. In office and retail environments, a vacant or partially vacant property may not generate any revenue, but still requires management. The example we would like to explore further is the management of water systems.
Beyond the current lockdown, organisations will be considering their re-start strategy and how they will approach re-commissioning of any premises; it is not as simple as unlocking the front door. The outbreak has meant that many buildings have been left with minimal or even no occupancy at the moment. This can give rise to a threat of Legionella bacteria building up in stagnant water within those buildings, which can have a significant health risk upon occupation.
It is anticipated by Public Health England (who undertake the national surveillance scheme) that there will be an increase in reported cases of Legionnaires’ disease from the 539 cases recorded in 2019 as a result of the current UK-wide lockdown. Organisations are encouraged to review their current water hygiene risk assessments to ensure the serious implications that arise from water stagnation are carefully reviewed and managed.
What legal duties do organisations need to comply with to ensure effective management of any water systems across premises and sites?
Duties under the Health and Safety at Work etc Act 1974 (HSWA) extend to risks from legionella bacteria, which may arise from work activities. The main duties are outlined in sections 2 and 3 HSWA where an employer has a duty to ensure the health, safety and welfare of its employees and others and section 4 which has a wider application to anyone who has responsibility for a workplace, to ensure that the premises do not endanger the people using them. These duties will capture employers who make premises available to employees, but also landlords, property managers and facilities management companies.
The above legal duties are to be performed as ‘far as reasonably practicable’. During the current pandemic, what is achievable, based on the risk and available resources, will likely be a moving target. Nevertheless, the Government has been clear that essential work and services should continue.
The Management of Health and Safety at Work Regulations 1999 (MHSR) provide a broad framework for controlling health and safety at work through the use of risk assessments (regulation 3). More specifically, the Control of Substances Hazardous to Health Regulations 2002 (COSHH) provide a framework of actions designed to assess, prevent or control the risk from bacteria including legionella. The Approved Code of Practice Legionnaires’ disease: The Control of Legionella bacteria in water systems (L8) contains practical guidance on how to manage and control the risks within your water systems.
The obligation to review risk assessments captured in the MHSR requires a review where there is reason to suspect the current assessment is no longer valid. The changes required in response to COVID-19 may provide such suspicion.
As an employer, or a person in control of the premises, you are responsible for health and safety and need to take the right precautions to reduce the risks of exposure to Legionella. You must understand how to: identify and assess sources of risk, manage any risks, prevent or control any risks and keep and maintain the correct records.
What is Legionnaires’ disease and what conditions increase the risk of Legionella bacteria?
Legionnaires’ disease is a potentially fatal form of pneumonia to which everyone is susceptible to infection. The risk increases with age and to those who have underlying health conditions. It is reportable under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR).
Legionnaires’ disease is normally contracted by inhaling small droplets of water suspended in the air, containing the bacteria. A number of conditions can increase the risk of Legionella including water temperatures operating between 20 and 45 degrees, which is suitable for the growth of the bacteria, or where water is stored for some time, and then re-circulated. The likelihood of either of these conditions arising is increased where a premises is closed for a significant period of time or is subject to much lower occupancy.
How will the implications of COVID-19 impact an organisation’s water hygiene system and what risks may this give rise to?
With only essential personnel required on sites as a result of COVID-19, there is potential for significant impact to water usage and flow as the demand for water will be significantly reduced. As demand is reduced the risk of low turnover and stagnation increases. With lower turnover there may also be an increase in water temperatures as pipes warm to ambient levels, particularly as we move in to Summer.
What measures can an organisation take now where a premises has been closed to minimise these risks?
All water systems should already have a risk assessment in place for managing the risks associated with Legionella. Organisations are advised to reconsider these assessments where buildings have low occupancy or where buildings are empty as this will may have a significant impact on the risk profile, or the necessary control measures.
Duty-holders need to ensure their assessment of risk is current and that includes the changing circumstances due to COVID-19. Organisations may need to introduce interim control measures to address the changing risk. If skeleton personnel remain on site a weekly flushing regime of all infrequently used water services could be adopted to ensure movement of water through the systems and to stimulate usage. This will assist in reducing the risk of bacteria growth within the systems and may reduce the costs associated in re-commissioning the water systems prior to occupation.
Any surveys or inspections of water systems should also be subject to a risk evaluation to ensure personal risk is managed and COVID-19 social distancing is observed. Any reviews must be recorded to include flushing frequency and temperature testing records.
Organisations may wish to consult with their water treatment consultants to ensure any interim measures are suitable and can be safely undertaken.
In multi-occupancy buildings landlords should contact tenants to ensure that they continue to fulfil their obligations with regard to legionella control in order to satisfy their duties under the HSWA. Particular issues may arise where tenants have gone into insolvency, or where all workers have been furloughed. In such cases, others may have to perform the work to keep a building safe.
What strategy should organisations have in place in advance of re-starting operations, where it has not been possible to gain access to the premises?
The greatest risk for potential Legionella exposure will be when the buildings are re-occupied; as many buildings will have been left empty for several weeks as organisations streamlined operations, reverted to a home-working model and furloughed employees.
Start-up procedures will need to be considered before the building can be re-opened. Consideration should be given to water system cleaning and disinfection and/or controlled flushing to mitigate the risk of prolonged stagnation. A comprehensive risk assessment review will need to be undertaken to ensure any surveys or inspections of the system are completed safely and where necessary appropriate PPE will need to be provided as the bacteria when disturbed can become airborne. Sampling of the system is recommended to assist in determining the extent of any issues within the water system to ensure the correct remedial measures are implemented.
The re-commissioning of water systems may involve sterilising, biocides or microbiological testing. It is recommended for organisations to liaise with their water treatment consultants now to gain insight into the procedures which may need to be scheduled prior to re-occupation to understand a timescale and costings.