A news item last week: '65 MPs and Peers call on Johnson to compensate key workers for long-COVID-19 as an occupational disease'. I'm sure most who read this will immediately support the concept of compensating the heroes of the NHS who have suffered and are suffering long-term disablement from the disease, even write in support of it to their MPs. Why then do I hesitate? After all, I spent much of my career involved in investigating occupational diseases, including five years on the Industrial Injuries Advisory Committee, and have pointed out in Scottish Review
that COVID-19 is an occupational disease (10 February
). My concern relates to equity and I shall start with an anecdote.
At a recent visit to hospital, my wife was attended to by two nice nursess, a staff nurse and a mature student. I asked them if they had been vaccinated and one had. The student, of South Asian origin, had not, apparently because she was studying nursing at university. Both were obviously at equal risk from contact with patients and after I drew this inequity to their attention she was quickly vaccinated by the hospital. I shall return to this later.
Compensation for illness and injury
We are used to the State paying benefits for loss of ability to earn because of disablement and illness. There are already two systems in the UK as part of the Welfare State, known as Personal Independence Payments and Statutory Sick Pay, for which employed people with COVID-19 or shielding because of it may apply. They apply equally to anyone with illness preventing them earning, and do not take account of causation.
There is also the Common Law that allows anyone who considers that their illness or injury resulted from an employer's (or anyone else's) negligence to sue for damages. A successful claim may result in significant payment, taking account of suffering and loss of past and future earnings. However, to embark on such a claim entails a financial risk to the individual in terms of legal fees. Victory against a public body such as the NHS implies movement of money from it, and thus the taxpayer, into the pockets of lawyers as well as the victim.
In addition to these, there is Industrial Injuries Benefit, a State-funded system of compensation. The responsibility for this in Scotland has recently been devolved to the Scottish Government and is under development.
Occupational injury and disease
The issue of compensation for industrial disease arose in late Victorian times when workplace injuries destroyed a worker's livelihood and legal advice was prohibitively expensive. A schedule of compensatory payments for specific injuries and death was drawn up and a system devised for assessing the financial cost of such injuries, implying no fault of the employer. This system is updated regularly and persists to this day. The payments are additional to any other benefits that the employee may be receiving and do not require loss of employment; thus an injury acquired at work attracts greater State compensation than the same injury acquired elsewhere, say on holiday or falling over.
In the early 20th century, it was recognised that there was a serious inequity; those who were disabled by injury at work obtained compensation while those ill from diseases such as silicosis or lead poisoning did not. The law was changed, a limited list of occupational diseases was drawn up and a system of assessment of individual claimants was devised. As the years passed, many other diseases were added to this list as their association with work was recognised; asbestosis, hearing loss, vibration white finger, occupational asthma and mesothelioma are some you will have heard of. In all of these, the association with specific employment was clear and easily established from medical knowledge, often latterly derived from epidemiology.
Diseases with multiple causes
The next issue concerned diseases which were common in the general population but the risk of getting them was increased in certain occupations. Some infectious diseases such as tuberculosis and hepatitis B were included where it was possible to detect the direct occupational cause in medical and nursing workers, so we got on the list; had I caught TB from my patients, I would have been able to claim.
However, some diseases proved more difficult. An example that I was personally concerned with was chronic lung disease other than pneumoconiosis in coal miners (pneumoconiosis was easy as it shows on X-ray and is specific to the occupation). After much debate, it was decided to award compensation for chronic obstructive lung disease to coal miners if they had worked a specified number of years underground, based on epidemiological evidence of a clear relationship between exposure to dust and risk of deteriorated lung function. Coal miners were probably more fortunate than many other groups of workers because the research had been done. Farmers can get compensation for arthritis of the knee because the research has been done, priests not; though they kneel a lot, their risks haven't been studied.
Compensating COVID-19 patients
Now, to return to COVID-19. We all know by now that this can be a terrible disease, fatal in some, disabling for weeks in many and associated with long-term symptoms in a small proportion. We also know that while affecting almost anyone, the risk of serious consequences relates significantly to age, obesity, ethnicity, presence of chronic diseases, living in poverty and crowded housing, and attendance at mass events. I suspect also viral dose is important. Doctors admitting these patients to hospital during the second phase are noticing that they are now younger, coming from groups still having to go to work.
As time passes, I am sure that epidemiology will establish that many occupations are at increased risk, through close mixing of people indoors. So far, bus and taxi drivers, hospital and ambulance workers involved in the early management of patients with COVID-19 (but not interestingly ICU, where personal protection is much better) and social care workers are almost certainly at increased risk. To this will be added other occupations such as workers in supermarkets, hospitality, schools, postal services, call centres, and goods distribution and delivery. I'm sure you can imagine others. And this raises two issues: causation and equity.
Where was the illness caught?
For all these workers at risk from an infected member of the public at work, there are three other possible causes of their infection – from a family member, from a colleague while socialising at work, and from some incidental exposure outside work common to everyone. Rarely, the source will be obvious but usually it will be conjectural. For compensation, someone will have to decide if it was acquired at work and ultimately this is likely to involve a compromise and an assumption – anyone on a list of specific occupations in which epidemiological studies have shown the risk to be doubled – a 100% increase – is the usual way of deciding (I can explain this, but not in this essay – it might deter you from reading on).
I'm afraid there is bound to be insufficient evidence on many occupations, at least initially, leading to some occupations being listed for compensation while others where the increase in risk is, for example, 75% are not. Inequity is built into this system. This inequity is unfortunately part of life, and politicians should beware of increasing it. People living in poverty and BAME individuals will be only too aware of it.
Who should be compensated?
There are other risks of inequity in the system of compensation. One lies in diagnosis, or definition, of the condition to be compensated for. All diseases require some definition if they are to be written into law or regulations. This is far from straightforward. While almost anyone, lay or medical, can recognise an asthma attack, many wise doctors have grown grey in striving to find a comprehensive definition of the condition. Any working definition, of necessity, includes some people and excludes others. Most of us older people hover between health and illness, and diseases often demonstrate a gradation in symptoms from none to severe.
What is 'long-COVID'? At present, it has many symptoms but rarely any physical signs. The symptoms range from psychological to physical, from tiresome to highly disabling. It usually improves with time but sometimes seems to persist for months, possibly longer. Criteria for diagnosis and for fair levels of compensation will have to be drawn up; experience suggests that these will not meet with universal approval.
A second source of inequity is in deciding who is a key worker. Most workers at risk pass under our radar – they are nevertheless those whom we rely on daily to provide and deliver things for us and to attend to our needs in call centres. Of course, doctors and nurses and others working directly with COVID-19 patients and caring for the old and disabled are heroes and deserve our respect and gratitude. If they fall ill, they will suffer like call centre or supermarket workers, and should receive benefits if they lose income or employment, but should one group receive additional benefits preferentially, and if not, how should we decide whom to compensate?
It is easy to make an emotional case for doctors and nurses, perhaps less so for the unconsidered numbers forced into lowly paid work but on whom we all rely for our comfort. Are, for example, precariously employed call centre workers or self-employed drivers key workers? To me they may be, to others perhaps not. There is an ethical case for spending any money on protection of workers than on compensation of a proportion.
What to do?
I think there are two ways Mr Johnson might respond; heart or head. I'm sure he will express strong support for the concept, recalling his personal indebtedness to the NHS. He then might agree to some form of monetary payment for specific affected individuals. This populist response would raise all the problems I have outlined above and cause tearing of hair among his and Scottish civil servants.
Alternatively, he may consider that new law is not necessary and pass the issue to expert advisors on industrial injuries, who will spend time reviewing the evidence and come up with suggestions as to whether and how various manifestations of COVID-19 might be included in specific regulations. Indeed, I suspect some may already be looking to see which occupations, if any, have a doubled risk of COVID-19-related conditions. If he takes this course, little action will result in the short term as this evidence will take time to accumulate, but understanding of the condition will increase. Meanwhile, the non-specific benefits mentioned above are available to those losing work from the illness, as to those with other non-COVID-19 disease.
Now, consider my anecdote. Imagine two young nurses such as I described, both working mothers of young children, caught COVID-19 and that there was an additional system of compensation for industrial injury. One, employed by the NHS would be likely to be eligible. The other, equally affected but on account of ethnicity more likely to suffer severely, being a university student would not. The same might be true of others working in the hospital, such as cleaners employed by contract unless their specific occupation has been shown to entail a doubled increase in risk.
It is often the case that just causes attract popular support for changes in the law and regulations. This is the reason we have parliaments which can debate the issues and make considered decisions. Rarely are these as simple as first appears and hasty decisions by politicians in response to expressions of popular opinion may cause inequity and popular dissatisfaction. I imagine a spirited but inconclusive debate.
Anthony Seaton is Emeritus Professor of Environmental and Occupational Medicine at Aberdeen University and Senior Consultant to the Edinburgh Institute of Occupational Medicine. The views expressed are his own