II. Occupational health and safety in a European Health Union

Discussions about the creation of a European Health Union abound. What better way to tackle ongoing and future pandemics than to strengthen coordination and approximate public health policies and strategies at the EU level. If anything, COVID-19 has shown that transnational cooperation is key. Health and safety in the workplace does not feature among the areas of EU competence that are traditionally perceived as the foundations of EU public health governance. On the contrary, it has been primarily associated with Social Europe, and EU labour law in particular. How, then, does it become relevant in the European Health Union debate? Is it not that a European Health Union only entails a pimped-up version of EU public health governance?

Calls for a European Health Union have been amplified in the course of the ongoing pandemic. Various organisations and think tanks have advocated for actions in that direction. This is exemplified at institutional level by a European Parliament resolution on the future EU public health strategy for COVID-19, the first point of which makes explicit reference to the creation of a European Health Union.Footnote ⁶ Although it is beyond the scope of this article to provide a definition of the term European Health Union, most of the aforementioned calls are based on the premise of a stronger public health component of the EU, mentioning health and safety in the workplace only in passing, if at all. Indeed, the much-lauded EU4Health Programme had monopolised the field, only for its funding to be substantially trimmed down in July 2020 as one of the collaterals in the Multiannual Financial Framework (MFF) negotiations.Footnote ⁷

Other contributions in this issue engage extensively with the specifics of a European Health Union. For the purposes of this article, a more liberal approach to the delineation of the term European Health Union is espoused; one that brings the marginalised – in this context – occupational health and safety to the forefront of discussions. Simply put, ensuring occupational health and safety, especially in the time of a pandemic, is bound to have an inherently positive impact on the public health front, too. After all, health and safety at work might not be the most obvious example, but this does not mean it is not an essential element of a fully realised European Health Union.Footnote ⁸ A healthy workforce is a sign of a healthy population, along with success in preventing, as well as containing, communicable diseases and public health emergencies alike.

The term European Health Union lacks a rigid definition. Its links to public health might be obvious, but that does not mean that its scope cannot be conceptually reinvented for occupational health and safety to no longer sit at the fringes of proposed action. Conceptualising European Health Union as an umbrella term or framework, emancipated from its exclusive association with EU public health governance – and competence – is conducive to the inclusion of occupational health and safety therein. Rejecting the view of complementary areas of EU action as silos is not unheard of. Looking at the European Pillar of Social Rights, for example, healthcare is featured as one of its principles, even though it does not belong to a stricto sensu Social Europe.Footnote ⁹ In other words, there have already been EU initiatives that draw on diverse EU policy areas.

In an era when bold and innovative actions are needed, allowing the co-existence of competence areas under a wider framework of action, such as that of a European Health Union, is likely to prove beneficial. Naturally, arguments to the contrary that invoke, for example, the need for simplicity by sticking to the EU public health competence could be raised. Given the MFF’s financial blow to the EU4Health Programme, the benefits of encompassing another area of action with distinct competences and processes in order to lay the foundations of an effective overarching scheme may as well outweigh any negatives. If anything, a European Health Union would enjoy a diverse toolkit of legal bases – and competences – adapted to its constituent elements.

Under this broad conceptualisation of the term European Health Union, narrowly defined public health measures would remain under the EU public health competence, whilst the Social Policy title would still be used for occupational health and safety actions. Yet, cross-fertilisation and dialogue between these overlapping policy areas are expected to enhance the quality of the proposed measures. Bringing occupational health and safety under the umbrella of a European Health Union does not equal its removal from Social Europe. Instead, it allows for its strong public health implications to be assessed and shaped in a closely related setting, too – that of a European Health Union. In turn, the latter would be empowered through tangible improvements in occupational health and safety, validating their interdependence.

This article’s discussion of occupational health and safety as a core component of a European Health Union is based on a normative framing of the term that bears resemblance to what has been set out above. This envisions European Health Union as an umbrella term, a framework that is wider than public health competence, and which incorporates the latter and transcends various traditional competence fields. Conceptually, a European Health Union has much more to gain by also relying on other areas closely linked to public health, such as health and safety in the workplace. Although it was important to engage with definitional aspects of a European Health Union in order to locate occupational health and safety therein, the remainder of this article does not dwell further on this point. It focuses instead on how occupational health and safety can feature, thrive and drive this broadly construed European Health Union.

III. The occupational health and safety acquis: from past to present to COVID-19

Unlike public health, which became officially part of the EU competences with the Treaty of Maastricht in 1993,Footnote ¹⁰ occupational health and safety has been included in the Treaties ever since the Treaty of Rome in 1957 as a constituent element of the Social Policy title.Footnote ¹¹ This is significant in itself, considering the emphasis of the Treaty on the economic aspects of European integration, which resulted in a lacklustre social dimension.Footnote ¹² It was initially hoped that achieving economic prosperity would have led to social development.Footnote ¹³ Although, ultimately, the development of Social Europe has given rise to the alleged fundamental asymmetry between the economic and the social,Footnote ¹⁴ health and safety in the workplace is the most highly regulated – and harmonised – area of the social acquis.

Coming back to the Treaty of Rome, the then Article 118 EEC (now Article 156 TFEU), much like the rest of the title, was of a largely symbolic and programmatic character, without stipulating any substantial involvement of the European institutions in the policy process.Footnote ¹⁵ Indeed, regarding the areas of Article 118 EEC, health and safety at work included, the Commission could only intervene in order to publish studies and opinions, promote close cooperation and coordinate appropriate action between the Member States.Footnote ¹⁶ The Court of Justice of the EU (CJEU) confirmed that under Article 118 EEC, the Commission’s role was merely procedural “and cannot prevent the Member States from implementing drafts, agreements and measures which it might consider not to be in conformity with [Union] policies and actions”.Footnote ¹⁷ It is clear that the Member States had the final say in matters of Social Europe, the then Community lacking any formal supranational competence.Footnote ¹⁸

A consequence of the reliance on Member State action is the absence of concrete initiatives in the area until the mid-1970s. In the meantime, accidents at work and occupational diseases were on the rise, giving impetus for further – more effective – action, manifested in the contents of the 1974 Social Action programme.Footnote ¹⁹ This was followed by two specific action programmes on health and safety at work,Footnote ²⁰ which spurred the first incarnations of a series of occupational health and safety Directives.Footnote ²¹ To overcome the obstacle posed by the lack of explicit EU competence therein, the institutions had to rely on the general provision of Article 100 EEC (now Article 114 TFEU) on the approximation of laws affecting the functioning of the internal market.Footnote ²² This is similar to the pre-Action programme days, when the field was regulated indirectly by legislative instruments adopted under other titles.Footnote ²³

A watershed moment for the legal autonomy of occupational health and safety at the EU level was the enactment of the Single European Act (SEA). More specifically, SEA detached the need for measures in the area to be adopted according to the workarounds mentioned in the previous paragraph. The newly introduced Article 118a EEC (now Article 153 TFEU) enabled the adoption of Directives laying down minimum standards and encouraging improvements on health and safety at work by the Council under qualified majority.Footnote ²⁴ The Commission did not waste time in taking advantage of the new provision under the aegis of the 1988 Programme on Safety, Hygiene and Health at Work.Footnote ²⁵ The backbone of those actions was undoubtedly Framework Directive 89/391/EEC. Its adoption was of great significance, since it enhanced the protection afforded by Framework Directive 80/1107/EEC by expanding the ambit of legislative intervention and establishing additional guarantees such as duties for the employer.Footnote ²⁶ Moreover, its rather general wording and scope meant that the specifics, particularly those of a technical nature, were to be dealt with by a series of follow-up Directives.Footnote ²⁷

The Framework Directive remains the centrepiece of EU legislative action in this area. The broad definitions of the core concepts of worker and employer ensure a wide scope of application and adaptability to changes in industrial relations.Footnote ²⁸ Moreover, the Directive fosters the adoption of protective and preventative measures, with the employer bearing the costs, and it creates various employer duties.Footnote ²⁹ Neal identified six types of employer duties: awareness; direct action to ensure health and safety; strategic planning to avoid risks; training and direction of the workforce; information, consultation and involvement of the workforce; and recording and notification.Footnote ³⁰ Just by looking at those duties alone, the value of the Framework Directive for ensuring the protection of the workforce in the midst of a pandemic is crystal clear. If anything, it makes it even more salient for employers to comply with their duties.

As mentioned above, a twin-track approach is followed insofar as the regulation of health and safety at work is concerned, where the overarching legislative piece is accompanied by numerous technical or specific ones.Footnote ³¹ Accordingly, the Framework Directive spurred Directives covering matters of workplace layout, equipment used and exposure to hazardous substances, as well as sectoral measures, the enactment of which spans several decades.Footnote ³² These often tackle issues that fall into the more narrow – and literal – interpretation of health and safety at work, relating to “risk assessment, preventing accidents at work, maintaining a hygienic working environment and combating industrial diseases”.Footnote ³³ They are complemented by measures referring to areas falling into a more expansive understanding of occupational health and safety, such as the Working Time Directive, which seek to improve a wider array of working conditions that can impact on health and safety.Footnote ³⁴ Both are relevant in the case of COVID-19. Strict compliance with the narrow understanding would shield the workforce from the virus, whereas respecting limitations on working time would contain instances of excessive overworking, one of the pandemic’s “side effects”.

In the decades following the Framework Directive, apart from follow-up legislation on the basis of Article 16(1) thereof or the occasional codification and updating, the core of the traditional understanding of occupational health and safety remained largely static. The rise of soft-law, which affected much of Social Europe, meant that occupational health and safety followed a comparable trajectory, with Recommendations and Strategies issued by the Commission.Footnote ³⁵ Moreover, the European Agency for Safety and Health at Work was inaugurated in 1994.Footnote ³⁶ The advent of 2000 saw health and safety being protected as part of a person’s working conditions in the Charter of Fundamental Rights of the EU (CFREU).Footnote ³⁷ The right to a high level of protection of occupational health and safety was also included in the latest reforms surrounding the European Pillar of Social Rights.Footnote ³⁸ Although the latter two are signals of a rights-based approach to the area, opening up a lot of opportunities, it will be argued below that their potential has not been realised yet.

Following from the discussion above, occupational health and safety has proved to be a burgeoning area of EU action despite the peculiar position of the social dimension, especially at the beginning of the EU project. It is true that the early regulation of occupation health and safety at the EU level was driven mainly by economic objectives. A level playing field was created among the Member States by rationalising health and safety compliance costs.Footnote ³⁹ Yet this is not the sole reason why health and safety legislation flourished. A rigorous health and safety regime in the workplace reduces business costs and, at the same time, improves industrial relations.Footnote ⁴⁰ In addition, it is bound to ameliorate the quality of life throughout the EU, and it takes on a preventative role of averting disasters of various natures.Footnote ⁴¹ The latter two reasons showcase the area’s public health ramifications and potential.

Today, the enactment of measures in the context of health and safety in the workplace may be underpinned by a plethora reasons, going hand in hand with the Member States’ contemporary realities. After all, occupational health and safety does not belong to the economic rationale of EU action.Footnote ⁴² Although social policies – occupational health and safety included – were left to the internal market and the Member States, it was later realised that further EU intervention under a social rationale that aimed to improve protection levels was needed.Footnote ⁴³ Consequently, an evolutionary process in the rationale of EU intervention in the field can be identified, wherein public health considerations linked to the protection of the workforce and the externalities associated with it take centre stage, especially in light of the ongoing pandemic. The clusters of COVID-19 infections constantly emerging in large workplaces are a testament to that, turning the protection of occupational health and safety into a public health matter without renouncing its social nature.

IV. Occupational health and safety and COVID-19

It is important to dig deeper into the ways in which the health and safety acquis can protect the European workforce. The foregoing analysis made it clear that the centre of gravity for EU health and safety at work continues to be the Framework Directive, accompanied by its daughter Directives, soft-law initiatives and an emerging, though light-touch, rights-based approach. The employer, employees and national authorities all share responsibilities in this context. However, most duties fall on the employers, the stronger party in the employment relationship, who have to bear most risks as a consequence of them profiting from the labour of their workforce.Footnote ⁴⁴ Starting with the Framework Directive, the various duties of the employer outlined above apply and are relevant in the COVID-19 context. Employers ought to show awareness of the changing circumstances, take appropriate action, planning and risk assessment, offer training and involve their workers in the decision-making, as well as keep records.Footnote ⁴⁵ All are crucial in order to frame a concerted effort to guarantee occupational health and safety.

The duties placed on the employer by the Framework Directive are quite expansive and involve the adoption of preventative measures.Footnote ⁴⁶ More specifically, the second subparagraph of Article 6(1) thereof resonates today: “[T]he employer shall be alert to the need to adjust these measures to take account of changing circumstances and aim to improve existing situations”. This, coupled with the enumeration of nine principles of prevention that follows, showcases that employers must be alert and adjust workplace practices accordingly in order to minimise the risk of their workers contracting and spreading COVID-19. Indeed, Article 6(3)(a) corroborates that employers have to consider all risks to health and safety in the workplace (emphasis added).Footnote ⁴⁷ Adaptations in workplaces where there is a clear risk of COVID-19 transmission are, therefore, stipulated by the Framework Directive.

The obligations of the Framework Directive are further fleshed out in the daughter Directives. Of those, Directives 89/656/EEC and 2000/54/EC are particularly relevant. The former covers the use of PPE, which is mandated if other measures and work patterns cannot eradicate the health and safety risk in question.Footnote ⁴⁸ There is a specific obligation upon the employer to provide for such equipment,Footnote ⁴⁹ compliant with EU standards,Footnote ⁵⁰ although there are exceptions for certain sectors.Footnote ⁵¹ Nevertheless, great emphasis is placed on the Member States, as they must lay down rules regarding the use of PPE and frame employers’ obligations.Footnote ⁵² This is in line with the minimum standard-setting character of the Directive as a measure belonging to the social dimension of the EU. An argument could be made to the extent that employers ought to offer COVID-19 PPE, and national legislation could be interpreted or amended in that regard. However, this is likely to take time. In the meantime, protection could still be afforded under the more general – in scope and framing – Framework Directive.

The fellow daughter Directive on the protection from biological agents at work adopts a pattern of more extensive employers’ obligations, mirroring those of the Framework Directive.Footnote ⁵³ Of relevance to COVID-19 are the reduction of risks; the information and notification of the competent authorities and the maintenance of a list of exposed workers; the hygiene and protection of workers, including PPE; and information and consultation.Footnote ⁵⁴ Furthermore, there are specific measures for healthcare and industrial processes, laboratories and animal rooms,Footnote ⁵⁵ which include explicit containment measures.Footnote ⁵⁶ Biological agents are classified in risk groups, ranging from 1 to 4, according to their severity.Footnote ⁵⁷

The classification of a biological agent to a risk group happens at the EU level, through their inclusion in Annex III to the Directive.Footnote ⁵⁸ In June 2020, COVID-19 was added to Annex III as a group 3 agent through the amending Directive (EU) 2020/739, with an implementation deadline falling on 24 November 2020.Footnote ⁵⁹ Interestingly, there were arguments – now dismissed – for COVID-19 to be classed in group 4 due to the lack of effective treatment or vaccine, which would have required stringent compliance and containment measures.Footnote ⁶⁰ The alleged downplaying of COVID-19 in its categorisation, as well as the need for an implementation period that is still months away, may render the effectiveness of the amendments to the Biological Agents Directive questionable from a Social Europe or public health standpoint.

The Framework Directive and its daughter Directives overlap. The general duties of the former are given specific expression in the latter. Nonetheless, sometimes, the specific and technical character of the daughter Directives might mean that it is more difficult for them to adapt to emerging risks, such as those posed by COVID-19. The involvement of the Member States in updating technical and rigidly formulated domestic regulations implementing the Directives inevitably could slow down processes, as could the updating of Annexes to include COVID-19. Moreover, the scope of the daughter Directives might not be as crystal clear as first thought, leading to more contentious interpretations compared to the unequivocal wording of the Framework Directive that covers all risks. For instance, the containment measures of the Biological Agents Directive only apply to specific settings.Footnote ⁶¹ Indisputably, containment measures are useful for areas of work that are more exposed to the risk of COVID-19, such as healthcare, but defining some of the other areas could prove difficult.Footnote ⁶² That being said, the Biological Agents Directive’s general provisions, allowing for health checks, should normally apply to every workplace where risk of contracting COVID-19 abounds.Footnote ⁶³ If the implementation date for COVID-19’s addition to Annex III was even shorter, this would allow us to better grapple with the magnitude – and pace – of the pandemic.

Apart from formal legislative action to include COVID-19 in the list of viruses covered by the Biological Agents Directive, guidance has been issued to adjust the EU occupational health and safety regime and practices to the new reality. This was spearheaded by the European Agency for Health and Safety at Work and includes general guidance for the workplace,Footnote ⁶⁴ as well as specific guidance for a safe return to work.Footnote ⁶⁵ A separate guidance for healthcare settings was issued by the European Centre for Disease Prevention and Control.Footnote ⁶⁶ These largely offer advice in accordance with the content of the aforementioned Directives. They showcase that the Directives’ interpretation and application could be adapted without requiring formal changes to tackle the new threat. The guidance refers to social distancing, proper hygiene, testing and PPE, complemented by measures to safeguard mental health well-being. It is supported by additional International Labour Organization (ILO) guidance along the same lines.Footnote ⁶⁷

A final note: perhaps surprisingly, given the underlining of the right to “a healthy, safe and well-adapted working environment” enshrined in Principle 10 of the Pillar to advocate for a short implementation period for Directive (EU) 2020/739,Footnote ⁶⁸ a rights-based approach is largely absent from the agenda. Even though it has been argued that workers shall enjoy a right to health and safety at work, it seems that such a debate has been neglected by the policymakers.Footnote ⁶⁹ Given that the right to healthy and safe working conditions is also protected under Article 31(1) CFREU, parallels emerge with the narratives surrounding the contested standing of the Charter’s social provisions,Footnote ⁷⁰ and whether these could be relied upon in horizontal situations.Footnote ⁷¹ Not paying due regard to the Charter at the policy level can only make things worse, since workers may lose additional ammunition of EU constitutional status in claims against their employers for inadequate protection from COVID-19.

V. A European Health Union by stealth?

After having set out the content and context of the EU health and safety at work acquis, as well as its relevance to the fight against COVID-19, this section elaborates on its potential involvement in the formation of a European Health Union. There are varied views on the desirability and the ways to achieve a European Health Union, reflected in some of the contributions to the special issue. Section II of this article accentuated the indispensability of incorporating health and safety in the workplace among the areas comprising a widely construed European Health Union. Both narrow and broad definitions of occupational health and safety touch upon matters that can trigger spill-over effects on public health. Diseases arising directly from work activities, or where the contribution of work to their transmission is significant, including those resulting in mild health problems, all showcase the salience of health and safety for the workforce.Footnote ⁷² Vice versa, a healthy workforce is an important aim for a European Health Union, for without one, there would be grave public health repercussions for the community.

At the EU level, public health and occupational health and safety are formally viewed as separate areas at the moment. This could be attributed to their distinct competence regimes, public health having its own title in the TFEU, whereas occupational health and safety belongs to the Social Policy title. Although the EU Strategic Framework on Health and Safety at Work talks about stronger cooperation with the stakeholders involved in public health,Footnote ⁷³ the so-called EU4Health Programme, whose proposal was unveiled at the end of May 2020, merely reiterates the same recommendation. From a public health perspective, too, it is important to engage with health and safety in the workplace. The EU4Health Programme might have been drafted in the shadow of COVID-19, but the only quasi-commitment to health and safety at work offered was the latter’s mention in the actions that could be supported so as to strengthen national health systems.Footnote ⁷⁴ The division between public health and occupation health and safety appears to remain, defying any potential cross-fertilisation that COVID-19 could have induced.

The EU competence on health has, similarly to Social Europe, undergone a tremulous journey. Initially, even the inclusion of public health therein was debatable.Footnote ⁷⁵ This might have been solved today, but there is still no authoritative provision in the Treaties that defines public health – or even health, for that matter.Footnote ⁷⁶ Nonetheless, it is widely accepted that EU public health refers to the management of collective health risks and the prevention of major diseases.Footnote ⁷⁷ Before its centre of gravity solidified in what is now Article 168 TFEU, public health was regulated indirectly at the EU level mainly through the Common Agricultural Policy and the free movement of goods.Footnote ⁷⁸ The first incarnation of Article 168 under the Maastricht Treaty prevented harmonisation of public health policies and assigned to the EU a largely coordinating role via the creation of programmes.Footnote ⁷⁹ Subsequent amendments enabled the approximation of Member States’ laws on the quality and safety of organs and substances, blood and its derivatives, medicinal products and devices and other veterinary and phytosanitary measures, through instruments such as Directives and Regulations.Footnote ⁸⁰ However, these areas have little direct impact on the occupational health and safety acquis.Footnote ⁸¹

With reference to the above, it becomes crucial to reiterate the need for a broad conceptualisation of the term European Health Union, so as to extend its scope beyond the EU’s public health competence by welcoming health and safety at work and other areas – when necessary – under its aegis. Apart from the symbolic gesture of breaking the barriers between interrelated areas and fostering a closer cooperation among the stakeholders involved therein more easily, putting health and safety at work in the driving seat for the creation of a European Health Union is likely to be beneficial in legal terms as well, since it would diversify the latter’s toolkit. The EU public health competence was only introduced with the Treaty of Maastricht in 1993 and, even then, was rather modest in nature, barring harmonisation for the most part and containing rather weak provisions.Footnote ⁸²

Although strengthened over time by the subsequent Treaty amendments, enabling EU (public) health law to make great advances,Footnote ⁸³ the stricto sensu public health competence of the Union is still limited.Footnote ⁸⁴ It has been propounded that a contextual, interrelated reading of the various legal bases touching on public and human health hints at the existence of more powerful competences than initially thought.Footnote ⁸⁵ Adding occupational health and safety into a wider European Health Union framework would legitimise the public health underpinnings of those actions that aim to promote not only worker protection, but also the health and well-being of the whole population of the EU through their preventative and safeguarding role.Footnote ⁸⁶ At the same time, it would expand the ambit of EU action in a broadly defined European Health Union by making sure to allocate the appropriate expertise in initiatives spanning interrelated subfields, which do not necessarily belong to the delimited public health competence.

The flexibility of this approach, fostering synergy-building and cross-fertilisation among interdependent fields, would help to achieve the creation of a European Health Union by stealth, avoiding complex discussions surrounding the formal expansion of the EU public health competence or a potential shake-up of the competence regime altogether. Finally, the diverse rationales underpinning social regulation, including in the area of occupational health and safety, would diminish the prevalence of a purely market-based perspective, which is dominant and governs hard-law interventions within the EU public health policy, emancipating a future European Health Union from a similar trajectory.

To add to the arguments above, the degree of relevance as well as the achievability of a European Health Union solely on the basis of the EU’s competence on public health alone remain uncertain.Footnote ⁸⁷ Occupational health and safety has enjoyed a longer-standing embeddedness in the Treaties, with a more elaborate set of actions allowed at the EU level compared to public health.Footnote ⁸⁸ Even though it belongs to Social Europe, an area of haphazard commitment for further involvement, health and safety at work has been singled out as a force majeure of Social Europe, where social regulation through hard-law has been desirable, even without explicit competences initially.Footnote ⁸⁹ This has empowered legal integration therein, establishing strong path dependence that legitimised the area, which has been accepted as such almost unchallenged since the beginning of the EU project.Footnote ⁹⁰

Apart from the salience of occupational health and safety, its practical effectiveness in contributing to the establishing of a European Health Union makes it all the more pressing to openly include it as one of the concept’s main drivers. Creative interpretations to advance public health might be tolerated in the current Treaty framework, but health and safety at work is already more intrinsically entrenched therein. Impediments to the approximation of health policies could keep public health in the sphere of (new) intergovernmentalism.Footnote ⁹¹ By contrast, occupational health and safety, with its long-standing minimum standard-setting approach across the EU, has strong foundations to build on that could have positive spill-over effects on the health of the rest of the population. Moreover, its expansive scope, covering vulnerable workers in atypical employment relationships, means that health and safety at work can protect certain groups of society without the need for further EU public health intervention.Footnote ⁹² On that note, let us recall that many of the recent COVID-19 outbreaks in Europe are linked to clusters in workplaces, pinpointing the importance of developing and better enforcing the occupational health and safety acquis. The latter figures among the most integrated aspects of Social Europe and could function as a driver towards a European Health Union too, for the reasons stated above. The two are not mutually exclusive.

VI. Occupational health and safety in a post-COVID-19 world: towards a European Health Union

The preceding section established why occupational health and safety is not only desirable but beneficial in the conceptualisation of the European Health Union. Building on that, this section sets out a roadmap for the health and safety at work acquis, taking into account the issues that emerged and the lessons learned during the ongoing pandemic. Proposals by the EU institutions to reform EU health and safety at work legislation in light of COVID-19 have been muted. The only exception is the inclusion of COVID-19 on the list of biological agents, exposure to which is protected under the eponymous Directive. Given the wealth of the occupational health and safety acquis, this is not surprising – neither is it contemptible. There is enough social regulation and minimum standards-setting approximation for the area to flourish and develop as it stands. What is needed, instead, is better enforcement to maintain its efficiency and effectiveness. In that way, a strong constituent pillar of the European Health Union would materialise.

The formal categorisation of occupational health and safety under the Social Policy title lends itself to an uninterrupted mélange of hard- and soft-law approaches alike.Footnote ⁹³ The emergence of a broadly construed European Health Union, which is more akin to an expansive framework, would enable synergies between public health and occupational health and safety narratives when needed. This is not novel, but it draws on the long-standing interdependence between the areas. Public health rationales are in the forefront of the EU’s strategy on biological agents and the prevention of work-related diseases.Footnote ⁹⁴ Moreover, public health authorities are already involved in ensuring the implementation and enforcement of occupational health and safety legislation in some Member States.Footnote ⁹⁵ Having health and safety in the workplace normatively shared between Social Europe and the European Health Union is, thence, likely to boost the quality of these proposals by framing them in a way that simultaneously protects the workforce and the health of the wider population of the EU.