by the A&L Goodbody Health & Safety team.
In ordinary times, the personal protective equipment (PPE) provisions in the Safety, Health and Welfare at Work (General Application) Regulations 2007 (the 2007 Regulations) would be of limited relevance to many employers, outside of construction or workplaces managing chemicals or hazardous substances. However, these are not ordinary times.
The Government’s COVID-19 related restrictions, which are currently in place until 5 May 2020, will gradually be eased. When this happens, more people will be permitted to return to work and there is likely to be a renewed focus on the measures which employers should take to protect employee welfare. A related question which is likely to arise is in relation to PPE more generally, and the extent to which employers must provide this to staff who are interacting either with members of the public, or with work colleagues, on a regular basis especially where social distancing may not always be feasible.
What is the standard that employers are held to?
Under the Safety, Health and Welfare at Work Act 2005 (the 2005 Act), employers are required to protect the health and safety of employees “as far as is reasonably practicable.” In relation to the duties of an employer, “reasonably practicable” means that an employer has exercised all due care by putting in place the necessary protective and preventative measures, having identified the hazards and assessed the risks to safety health likely to result in accidents or injury to health at the place of work concerned and where the putting in place of any further measures is grossly disproportionate having regard to the unusual, unforeseeable and exceptional nature of any circumstance or occurrence that may result in an accident at work or injury to health at that place of work.
This is a very exacting standard to meet and one which requires employers to exercise considerable care and diligence in their protection of employee welfare. In order to discharge their health and safety obligations, employers should document the measures they have adopted, in light of risk assessments being carried out by competent persons, and review these periodically in response to further guidance from the HSE and Government.
What does health and safety law require in relation to PPE in the context of COVID-19?
The 2007 Regulations provide that employers must ensure that PPE is provided for use where risks at the workplace cannot otherwise be avoided.
So, employers must first conduct a thorough COVID-19 specific risk assessment to identify the nature of the risks which their employees will be exposed to, work out how to mitigate those risks without needing PPE, and only then look at which PPE is necessary/feasible to further limit those risks to achieve the required standard. If the workplace can be adapted to facilitate social distancing, for example through the use of physical barriers (e.g. glass or plastic barriers as used in certain supermarkets), limitations on the number of people who can enter any particular space at one time, separate eating and toilet facilities and the provision of hand sanitizer and washing facilities, it may not be necessary to provide PPE. In other workplaces, it may be essential to provide PPE in the form of gloves, and/or face masks and/or suits to employees in order to ensure the health and safety of employees and others who may be affected, to the fullest extent reasonably possible. Ultimately, whether and what PPE is required will depend on the specific workplace, and the risks which arise from that workplace after all other precautionary measures have been taken.
If employers do determine that PPE is necessary, they must ensure that any PPE which is provided is fit for purpose and adequate to protecting their employee from the identified risk. Employees should fully understand how to use it/wear it properly so that their health is best protected, and employers should oversee its use to make sure employees are adhering to best practice. Any concerns about deficiencies or inadequacy of the equipment provided should be capable of being raised with the employer.
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