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Employers obligations to provide PPE during COVID-19 pandemic
PPE for healthcare workers
The provision of Personal Protective Equipment (PPE) to frontline workers is a topic which has had much media interest, with a number of papers referencing a lack of PPE as the cause of an increased risk to frontline workers of contracting COVID-19 during the global pandemic.
The Government itself has issued guidance on PPE during the COVID-19 pandemic for health and social care workers. It recognises that health and social care workers are at repeated risk of infection and that some of the environments that they work in and the procedures that they undertake put them at a higher risk of transmission.
The Government sets out a number of recommendations for the use of PPE and covers a wide range of health and social care workers including primary, outpatient, community and social care, ambulance staff, paramedics and pharmacists as well as social care workers in secondary care inpatient clinical settings.
The guidance covers where it is appropriate for the single use of PPE, such as aprons and gloves in accordance with standard infection control precautions. Other PPE can be subject to single use in certain circumstances or continual use on all other occasions, including respirators, fluid resistant surgical masks, eye protection and disposable fluid repellent coveralls or long sleeve disposable fluid repellent gowns.
The Government advises that
ultimately, where staff consider there is a risk to themselves or the individuals they are caring for they should wear a fluid repellent surgical mask with or without eye protection, as determined by the individual staff member for the episode of care or single session
There are a number of different considerations surrounding the use of PPE in a healthcare setting, particularly in light of COVID-19. But what of other employees who cannot undertake work from home and are required to work in areas where they are at a higher risk of COVID-19?
What obligations are employers under in terms of protecting their staff and limiting the spread of COVID-19?
An employer’s duty to protect their workers is covered by legislation, including the Health and Safety at Work Act 1974, the Personal Protective Equipment at Work Regulations 2002 and the Management of Health and Safety at Work Regulations 1999.
Your employer has a duty to provide you with a safe place of work, a safe way of working, safe and suitable equipment to work with and safe and competent colleagues to work with. If they do not, and you suffer a work accident injury as a result, then you may be entitled to bring a personal injury compensation claim.
Employers are under a duty to do everything that is reasonably practicable to safeguard their employees and those affected by their operations under the Health and Safety at Work Act 1974. This involves assessing the risk presented to their employees and making provision to protect them. This remains the case during the COVID-19 pandemic and an example of some of the steps undertaken by employers to protect their employees, may include supermarket workers who have now been provided with protective screens at the checkouts.
On 10 May 2020 in his address to the Nation, the Prime Minister urged all employees who could not work from home, to return to work, unless they worked for non-essential shops and public venues which have been asked to close.
The Government have since published workplace specific guidance for employers and business on COVID-19 and how to work safely during the pandemic.
What about PPE? When should PPE be given?
Guidance on the use of PPE is given in the Personal Protective Equipment Regulations 2002 and the Personal Protective Equipment at Work Regulations 1922.
The COVID-19 pandemic means that some employers, who would not necessarily have needed to consider the provision of PPE prior to the pandemic, will now need to consider whether PPE equipment should be provided to their employees to minimise the risk to their health and safety whilst at work. Due consideration should be given to the Government’s guidance published for specific employers and businesses when assessing the need for PPE. It is particularly relevant for employees who are unable to work at home and therefore must travel into work, whilst adhering to the Government’s social distancing guidelines.
The above regulations provide that PPE should be appropriate for the risk or risks involved, is capable of fitting the wearer correctly, prevents or adequately controls the risks involved as far as is practicable and takes account of the wearers own state of health. The regulations do not specify the type of equipment which is required and therefore there is some flexibility for employers to consider what is appropriate in their own employment circumstances, in line with current guidance.
What about personal hygiene in line with guidance on hand washing?
Further regulations on health and safety can also be found under the Workplace (Health, Safety and Welfare) Regulations 1992. This includes provision of readily accessible washing facilities, including showers (section 21) for health reasons or if required by the nature of the work involved. In light of Government guidance that hygiene is of utmost importance during the pandemic, this particular regulation has taken on greater significance. It should be noted that under the regulations the provision of hand sanitizer is not sufficient to discharge this obligation. This is because the regulations specify the use of soap and clean hot and cold or warm water.
The Health and Safety Executive (HSE) has highlighted some areas of employment where this is of particular importance. For example, drivers who are undertaking deliveries must still have access to welfare facilities in the premises that they visit as a part of their work.
HSE has been informed that some drivers are being prevented access to use the facilities at the sites which they deliver to and are highlighting that preventing such access is against the law, as reasonable access should be provided to these workers. HSE state that:
failure to allow access to welfare facilities may increase the risk of the COVID-19 infection spreading
So what can employees expect their employers to be doing to protect them in these circumstances?
It is not unreasonable for employees to expect their employers to have undertaken updated risk assessments in light of the current pandemic. It is likely that any previous risk assessments undertaken will be out of date and not appropriate for the evolving knowledge on COVID-19.
There is no guarantee under the regulations that introducing the recommended measures will protect employees from contracting COVID-19, but they should allow for systems to be put in place to provide them with an increased level of protection from such a risk. This includes providing them with appropriate PPE where necessary, allowing them to access hand washing facilities throughout the day and reviewing the risk to their employees on a regular basis to keep in line with updated Government guidance.
HSE has also issued guidance on a number of issues surrounding the COVID-19 pandemic and highlights specific advice for a number of industries, including the construction industry and guidance on safety for home workers in light of social distancing measures.
What happens if I contract COVID-19 at work? Should my employer report it?
The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 puts a duty on employees and the self-employed in certain work premises to report certain serious workplace accidents, occupational diseases and specified dangers occurrences.
HSE have provided guidance on how this applies to coronavirus. They have specified that reports should be made of a dangerous occurrence in the event that possible or actual exposure to coronavirus occurs as a result of an unintended incident at work.
A case disease should be reported if a worker is diagnosed with COVID-19, where there is reasonable evidence that is was caused by exposure at work. A report should also be made in the event that a worker dies as a result of occupational exposure to coronavirus.
Examples of the circumstances which may give rise to a report have been given by HSE.
With COVID-19 impacting on business across the UK and around the world, employers will need to adapt to the ever changing knowledge on the disease to ensure that their employees are adequately protected, particularly where employees are unable to work from home. Stories of employees put at risk with members of the public spitting at them, are sadly emerging and raise issues of concern about what needs to be done to protect those employees who cannot work from home in this ever evolving pandemic.
I wanted to take the opportunity to express my thanks to you for your professional attitude and handling of the claim throughout this tragic case. It is in cases like this where the compensation can never compensate for the loss suffered, but hopefully it will help in some way to move forward.
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