Under our health and safety legislation, all employers have a duty of care to ensure the health and safety of their employees. In order to determine what measures need to be implemented to satisfy their statutory obligations, employers often carry out a risk assessment. This assists an employer in identifying risks in the workplace that could cause harm to employees and what reasonable steps could be taken to minimise such risks. An employer is expected to identify and take sensible measures to control such risks in the workplace. Sometimes Governments are so concerned with risks to employees in certain types of work they pass and implement specific laws detailing what measures must be implemented by employers to control risks to employees, for instance employees working with asbestos.
Personal Protective Equipment (PPE) is equipment that is intended to be worn by an employee at work, which protects them against risks to their health and safety. A risk assessment will often help determine where PPE is necessary and PPE is often used when there is no other way of controlling the risk of harm at work to an employee. Governments may also pass legislation compelling employers to provide PPE to employees who are doing certain types of work. If employers fail to provide sufficient PPE or fail to comply with statutory obligations regarding the provision of PPE, proceedings may be taken against them by statutory authorities. Such proceedings are normally taken by either the Health and Safety Executive for Northern Ireland (HSENI) or by local councils. In addition, if employers fail to provide proper PPE for employees where necessary, they may become liable in law for any subsequent harm to employees who suffer a loss as a result of such failure.
In the current pandemic of COVID-19, all employers would be expected to update or carry out a risk assessment to assist them in determining what additional risks employees may be exposed to as a result of the virus. These risks will clearly vary and depend on the type of work an employee may do. Measures taken by an employer to minimise the potential risk of harm to an employee must be commensurate with the risks identified in a risk assessment.
Employees working in an office type environment would be expected to inform employees of the various ways one could contract COVID-19, practice safe distancing between employees and provide barrier methods to prevent transmission such as hand sanitisers, warm water, paper towels, soap etc. Employees should be instructed to wash their hands often and should keep their interpersonal contacts to a minimum. Home and remote working may be the most effective way of minimising potential harm to employees and this is what many employers are turning to in an effort to ensure the health and safety of their staff.
Employees in the retail sector face more difficulty. They cannot work remotely if on the shop floor and an employer will have to provide them with instruction and facilities to practice barrier methods of hygiene. For till staff especially this could include hand sanitisers, contactless methods of payment if possible, face masks, disposable gloves and regular breaks for hand washing and hygiene. In some instances, the risks to employees may be too great and employers may feel they have no choice but to close the business down temporarily.
Employees in the emergency services on the front line face the greatest risks as they are most likely to come into contact with suspected or actual COVID-19 patients. Again risk assessments will have been conducted and measures to minimise risks implemented. In GP practices this will include video or phone rather than face to face consultations, prescriptions collected from pharmacies directly, hand sanitisers for use on entry and exit from buildings, PPE as appropriate for staff in contact with the public and regular hygiene breaks for everyone to wash hands etc. Health Boards and Trusts are likely to have advised practices directly in this regard. The police and fire service, on foot of risk assessments, would also be expected to be provided with appropriate instruction and PPE to minimise their risk to COVID-19.
It is hoped that heath workers (including nurses and doctors) in hospitals are the best resourced when it comes to PPE and one would expect the highest levels of provision. They are certainly at the highest risk. Risk assessments and contingency plans (some already prepared) would have been expected to be adopted at the inception of this crisis. The Government is also likely to adopt standard rules across the sector to ensure the health, safety and welfare of all employees.
Failure to carry out risk assessments and provide PPE where appropriate would raise questions as to whether the employers have met their statutory obligations and this could have serious legal consequences for them.
Disclaimer: This article does not constitute legal advice. Legal advice should be sought to address specific circumstances.
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