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Legal rights and coronavirus: Personal Protective Equipment (PPE) in the workplace

As the coronavirus increasingly affects our daily lives we aim to provide some useful discussions on legal matters during these uncertain times. Today, personal injury solicitors Sally Moore and Ross Whalley discuss the importance of personal protective equipment in the workplace.

Nurse wearing protective equipment
Related Areas of Practice:
Sally is lead partner in the accident and personal injury claims team and specialises in high value cases for clients who have suffered life changing personal injuries. Ross is an associate solicitor specialising in personal injury.
The basic government guidance is clear: “Stay at home. Only go outside for food, health reasons or work (but only if you cannot work from home)”.  

As a first step, where possible, an employer must enable their staff to work from home.  For many people who are office-based this is often simply a question of having the internet and right computer equipment but can be less straight forward for those workers who need to be in their place of work to get their job done.
 
Current government guidance is that those that cannot work from home can still travel to work (unless they need to self-isolate). This includes key workers such as supermarket staff, emergency services personnel and others engaged in providing essential utilities and services. These people are engaged in jobs that benefit us all individually and are for the good of society as a whole.   So what protection should be afforded to workers who are required to go to work - many of whom will be operating in environments which place them at significantly increased of contact with coronavirus?
 

Safeguarding employees – the Health and Safety at Work Act

 
Whilst these may be extraordinary times, the guiding principle for employers has not changed; the Health and Safety at Work Act 1974 duty still requires that an employer does everything that is “reasonably practicable” to safeguard their employees and those affected by their operations.
 
Employers must therefore assess the risks that are present in their workplace and act accordingly. This now includes making provision for employees against the risk of coronavirus infection. Employers owe a duty to identify and take appropriate measures to lessen this risk, which must also take into account any particular vulnerabilities amongst their staff such as pregnancy or people with underlying health issues.     
 
The general Government guidance for employers on coronavirus stresses that employers should make sure workplaces are clean and hygienic, promote regular and thorough hand-washing, and promote good respiratory hygiene. 
 
Whilst this and other steps such as social distancing and self-isolating may prove effective preventive measures, what consideration is given to those workers at greater risk?
 

The law regarding Personal Protective Equipment (PPE)

 
The Personal Protective Equipment Regulations 2002 and the Personal Protective Equipment at Work Regulations 1922 (as amended) set out the main requirements in respect of Personal Protective Equipment, or PPE.    The Regulations provide that where there remain unavoidable occupational risks to health and safety that cannot be adequately controlled in other ways, the regulations require PPE to be supplied.
 
Whether and what PPE an employer should be providing will vary depending on the nature of employment i.e. the nature of the work, who is involved and where this is undertaken. What may be appropriate in one employment context may not be the same in others. An employer should give very careful consideration to the extent and nature of risk of coronavirus to their employees.  What is required in a healthcare setting,  where gloves, aprons and screens may be proportionate to the risk, may not the be same as what is required by supermarket workers.
 
Within Public Health England guidance, there are different requirements applying to different NHS personnel:
 
For those working within one metre of a patient with possible or confirmed COVID-19, those employees should be provided with a surgical facemask, apron, gloves and eye protection.

Staff delivering or assisting with an aerosol generating procedure in Intensive Care Units or the hot zone of an Emergency Department should be provided with an FFP3 respirator, a long-sleeved disposable gown, gloves and eye protection.
 

Important PPE considerations – sizing, storage and lifespan

 
The Regulations also require that PPE is properly assessed before use to make sure it is fit for purpose i.e. it offers adequate protection for its intended use, and that those using it are adequately trained in its safe use.
 
Incorrect use of PPE can put workers at greater risk. PPE should be correctly fitted, taking into account individual circumstances such as body shape, any impairment or health condition.
 
Likewise, an understanding is required of storage, lifecycle and disposal of PPE so that such items do not carry, and therefore further, the risk of infection. PPE should be stored to prevent contamination in clean areas. 
 
Recent research indicates that Coronavirus lives longer on different surface types. It is considered that the virus lives longer on plastics than ordinary clothing fabrics, so if not correctly used and disposed of, items such as masks and goggles may aid the spread of the infection. An employer must give employees clear and accurate guidance on PPE lifespan and disposal and replacement equipment should be readily available so staff do not feel they need to continue using their PPE due to shortages in supply.
 
Some PPE is deliberately designed to be single use, given the inability to disinfect it after use. Sharing of PPE should be avoided, with equipment to be assigned to specific individuals, especially where the equipment is tailored to the specific employee’s requirements such as sizing. Altering or making adjustments to PPE is to be discouraged.
 
Care must be taken when putting on or removing PPE. Instructions should be provided to ensure that equipment is kept away from the face and as far away from others as possible to avoid the possibility of cross contamination.
 

Keeping PPE under continual review

 
This pandemic and the world’s response to it is an ever-changing situation, causing our lives (in and outside of work) to change dramatically as guidance on safe practices evolve.  It is essential that employers keep PPE under continual review by monitoring the risk, engaging with employees, considering employee suggestions, complying with regulatory guidance and modifying their approach as needed to respond to greater awareness of the risks.   With news of health care professionals dying of the virus across the world the obligation to protect front line staff is one of the greatest priorities this current crisis presents.
 
Employers, including the NHS, must ensure that adequate risk assessments, training and equipment are in place and are sufficient to cope with the evolving face of the threat which this unique situation presents.  Failures to do so will put workers’ lives at risk and those of their immediate family.  
 
Given how vital it is to protect our key workers from harm and to prevent the spread of this virus it is absolutely vital that all employers following the Health and Safety at Work Act and PPE regulations to protect us all.
 
More information about your legal rights relating to coronavirus can be found on our website.

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