Health & Safety and Coronavirus – to PPE or not to PPE?
Last Updated: 16:10, 2 February 2021
Since the Country came out of the first national lock-down back in May 2020, and with the subsequent and gradual reopening of businesses across the Country, most companies have been faced with the gruelling task of introducing new safeguards in the workplace so that their premises are “COVID-secure”. Even though the Country has, since the 6 January 2021, reverted back into a national lockdown, most companies are still permitted to operate providing that they can meet this requirement.
Although the Government and the Health & Safety Executive (HSE) have continued to publish and update their guidance so as to help companies create a “COVID-secure” environment, the question of whether employers also need to provide their staff with Personal Protective Equipment (PPE) and face coverings is an issue which has caused a considerable amount of confusion.
After all, the government’s initial stance in downplaying the effectiveness of face coverings at the start of the pandemic did not sit consistently with subsequent decisions to make it compulsory to wear these garments in circumstances such as when travelling on public transport or indoor transport hubs, and when visiting shops, supermarkets, indoor shopping centres, banks, building societies, and the Post Office.
This begs the obvious question as to how employers are supposed to square these two conflicting stances and comply with their duties under health and safety law.
What does the law and government guidance require?
Employers must firstly draw a distinction between PPE and face coverings. PPE includes protective equipment such as safety helmets, gloves, eye protection, and high visibility clothing. Where COVID-19 is concerned, it also includes respiratory protective equipment such as face masks. Face coverings, on the other hand, are not PPE as they are not manufactured to a recognised standard, are not CE marked, and do not provide a proven level of protection against risks in the workplace.
Where the law is concerned, the Personal Protective Equipment Regulations 1992 require employers to ensure the provision of PPE to any employee who may be exposed to a risk to their safety unless the risk has been adequately controlled by other means which are equally or more effective. This applies to all workplace risks, including those posed by COVID-19, and where PPE is considered necessary, this must be provided free of charge.
Employers must consider these regulations in conjunction with the Government’s guidance on creating a “COVID-secure” workplace, which is split into 14 separate publications, each relating to different sectors across the economy. That being so, the advice around PPE is largely consistent across the board. Essentially, using PPE for protection against Coronavirus is generally only required for certain healthcare activities, and its use in other environments is mostly discouraged outside of a clinical setting or even when responding to a suspected or confirmed case of COVID-19. The only exception is the guidance relating to “close contact services”, which includes hairdressers, barbers, and beauticians, where it is acknowledged that workers will be in close proximity to their clients for a “extended period of time”, and therefore the use of additional protection in “the form of a clear visor or goggles and a Type II face mask (namely a medical face mask made up of a protective 3-ply construction that prevents large particles from reaching the client or working surfaces)” is recommended.
Where face coverings are concerned, and excluding the specific circumstances where they are to be worn as a legal requirement, the Government guidance now makes it clear that employers should support those employees who choose to wear a face covering in the workplace. There is also now a clear acknowledgment that the “best scientific evidence” shows that wearing a face covering may reduce the spread of droplets in certain circumstances thereby helping to protect others rather than the wearer. However, the guidance is also very clear in its message that the use of these garments should not be a replacement for other ways of managing risk, such as social distancing and regular hand washing, and the Government “do not expect employers to rely on face coverings as risk management for the purpose of health and safety assessments.”
Is the guidance likely to change and, if so, what are the risks to companies?
Although the government have sought to discourage the use of face coverings and PPE (other than in a clinical setting) throughout most of the pandemic, the decision to recommend specific PPE in the guidance relating to “close contact services” last Summer led many to believe that this may be the start of a shift in approach across all sectors. This would, of course, be significant as it is well-recognised that such guidance, although not law, is likely to set the bounds of what is reasonably expected of employers by the HSE.
Whilst such a change has not quite materialised, were this to happen, then companies are likely to face the obvious problem of sourcing face masks as PPE as well as having to decide what type would be most appropriate to protect employees in the workplace. This latter point is particularly important as the World Health Organisation have now recognised the huge variability in filtration efficiency between different types of masks (a range of between 0.7% to 60%).
Whilst any further u-turn regarding the use of PPE and face coverings in the workplace would inevitably create a huge headache for companies, the government’s stance on this issue needs to be monitored very closely as any failure to provide this equipment, in circumstances where its use is specifically encouraged across more sectors, would leave companies exposed to allegations that they are failing to meet their responsibilities under health and safety law.
In those circumstances the risk to companies would be significant, especially in light of the HSE’s recent promise to “scale up” the number of workplace inspections, along with an increasing number of calls by the media for the HSE to adopt a more stringent approach to enforcement through the issuing of enforcement notices and prosecuting the most serious breaches.
Contact our Compliance & Regulatory team today if you require any advice regarding PPE or any other issue concerning health and safety in the workplace.
If you would like to talk through the consequences for your business, please email us and one of our team will get in touch.
The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
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