Given the concerns raised by healthcare workers in recent days regarding the risks involved with them treating patients with no Personal Protective Equipment (PPE), we have published the blog below that outlines an employee’s rights when not receiving adequate PPE.
The purpose of this blog is to set out the legal obligations and liabilities of employers in the provision of PPE to healthcare workers (doctors, nurses and associated health service personnel) in the current crisis.
All employers, including private hospitals and the Health Service Executive, have a duty of care to their employees. They must provide a reasonably safe working environment, with safe equipment, systems of work and competent staff. We call this the common law duty of care. In addition, the State has passed laws (statutes) through the Dáil that impose statutory duties of care on employers (the main legislation providing for this is the Safety, Health and Welfare of Work Act, 2005). These two types of law complement each other in ensuring the health and safety of employees.
In determining the nature of the risks and minimisation of their consequences, employers will carry out a risk assessment that helps identify the risks and the means of removing or reducing them. It is expected that employers will first safeguard the health and safety of their employees by measures to eliminate work risk through organisational or technical means and it is only if this is not possible, that PPE is employed against unavoidable hazards i.e. PPE is a last resort and if there are any other means of dealing reasonably with the risk, they should be adopted.
The Safety, Health and Welfare at Work (General Application) Regulations 2007 (Chapter 3 and Schedule 2) lists in general terms the nature of the duties imposed by law on an employer re the provision of PPE and the type of activities and sectors that may require PPE. The Safety, Health and Welfare at Work (Biological Agents) Regulations 2013 with their codes of practice deals with the protection of employees from risks related to exposure to biological agents (including viruses) at work. It makes clear that PPE should be:
- Fit for purpose and suitable for person wearing or using it
- Not be a source of further contamination
- For personal use, not shared and free of charge
- Used close to point of use and stored safely
- If a tight fitted negative respirator, be fit tested
Face or eye protection such as goggles or face shields should be provided where there is risk of contamination of the eyes or mucosal membranes by droplets (as in COVID-19) and gloves worn to avoid cross contamination.
Protective clothing such as scrubs, aprons, gowns, body suits or footwear (as appropriate) should be provided and disposed of securely.
On 17th March 2020, the Health Service Executive and the Health Protection Surveillance Centre published a series of recommendations for the use of PPE in the management of suspected or confirmed COVID-19 cases.
Many of the duties imposed may seem to be common sense and self-evident – and they probably are. By imposing these duties through statute, the Government is making it clear what is required from employers. If employers fail to comply with their statutory obligations, then the enforcing health and safety body in Ireland – the Health and Safety Authority – may take action for non-compliance against the employer and compel them to take the appropriate steps to ensure compliance and as a last resort, may take action against the employer for breach of the legislation through the courts.
Enforcement of the health and safety legislation is entirely separate from an employee’s right to pursue an action for damages against an employer for breach of the legislation.
An employee can pursue an action for damages against an employer if he or she can show that the employer was negligent by way of act or omission in their place of work and as a result, they sustained a loss, financially, in health terms (personal injury) or otherwise. Lawyers call this negligence. Negligence is made up of four elements:
- A duty of care – e.g. employer and employee
- Breach of this duty – e.g. a failure to provide a safe system of work or proper or sufficient PPE
- Damage/loss – physically, mentally or financially
- Causation – the breach of the duty of care has led to the damage or loss
If therefore a healthcare worker developed COVID-19 whilst treating patients, would they have an action against their employer? Applying the principles above:
- There is a duty of care (either common law, statute or both) between the healthcare worker and employer.
- If the health worker developed COVID-19 as a result of improper or inadequate PPE then it is likely that the duty of care has been breached.
- Loss or damage will have been sustained by the ill-health caused by contracting COVID-19 together with financial loss such as wages etc.
- The failure to provide proper or adequate PPE led to the loss and damage. This is likely to be the most contentious part of any action. Employers and their insurers will doubtlessy argue that given COVID-19 is a transmissible virus, it could not be proved that the health worker contracted it as a result of the breach of duty of care at their work, rather than from their family or members of the general public.
We believe this can be overcome:
- Given the rates of infection of healthcare workers, epidemiological evidence can be called showing that the exposure to COVID-19 was materially much greater amongst health workers treating COVID-19 patients and relatively speaking, many more health care workers contracted COVID-19 than members of the public.
- As a matter of law – where a claimant has sustained injury from a specific agent (in this instance COVID-19) but cannot show definitively that the agent could only have been contracted as a result of negligent work practice, the courts will treat the material increase in the risk of contracting COVID-19 as a result of such negligent work practice as sufficient to satisfy the causation requirements between the breach of the duty of care and the loss or damage Barker v Corus (UK) PLC (2006).
Therefore, if you are a healthcare worker and you have contracted COVID-19 as a result of negligent work practice or insufficient or inadequate PPE, you may have a cause of action for all loss sustained against your employer.
Disclaimer: This blog contains general information about the legal topic discussed. It does not deal with every important topic nor cover every aspect of the topics with which it deals. It does not constitute legal advice, nor should you rely on it as legal advice. If you have any legal problems, please seek advice from a solicitor.