Employment Health & Safety law and COVID-19

For up-to-date information and guidance on COVID-19 (Novel Coronavirus) go to –

Irish Health Services Executive (HSE) and Government websites:

www.HSE.ie

https://www2.hse.ie/coronavirus/

https://www.gov.ie/en/campaigns/c36c85-covid-19-coronavirus/

UK National Health Service (NHS) and Government websites:

https://www.england.nhs.uk/coronavirus/

https://www.gov.uk/guidance/coronavirus-covid-19-information-for-the-public

EMPLOYMENT HEALTH AND SAFETY LAW AND COVID-19

The basis for ensuing occupational health and safety is the identification of hazards, the assessment of risk and the implementation of appropriate and effective controls. The effect of physical hazards on the human body is generally assessed by way of measuring physiological responses, and setting exposure limits. In the case of a virus there is no occupational exposure limit. This virus is new and there is no protective or curative medicine. Protection is achieved by preventing exposure.  If you are an employer whose employees or contractors may be exposed to COVID-19 as a result of their employment, you need to ensure that you are complying with current national and EU legislation as it applies to health and safety. Applicable legislation in Ireland includes the following:

• Safety, Health and Welfare at Work Act 2005
• SHW at Work (General App) Regs 2007, Part 2 Workplace and Work Equipment, Chapter 3 – Personal Protective Equipment and Amendment Regulations 2007, European Union (Personal Protective Equipment) Regulations 2018
• SHW at Work (General App) Regs 2007, Part 6 Sensitive Risk Groups, Chapter 2 – Protection of Pregnant, Post Natal and Breastfeeding Employees and Amendment Regulations 2007
• SHW at Work (General App) Regs 2007, Part 6 Sensitive Risk Groups, Chapter 1 – Protection of Children and Young Persons and Amendment Regulations 2007
• Safety, Health and Welfare at Work (Biological Agents) Regulations 2013

A. RISK ASSESSMENT

The common requirement in all health and safety legislation is to conduct a risk assessment. The risk from this virus is likely to depend very much on personal susceptibility, which is known to some extent, but not fully predictable. The following categories may be used:

Initial symptoms vary significantly but most frequent and likely are fever, new cough, breathlessness.

• Potential fatality
  To whom?
  Evidence to-date is that this is predominantly people who are susceptible due to pre-existing conditions, including asthma, diabetes, chronic bronchitis and other respiratory illnesses; people recovering from illnesses such as cancer; people over 65; pregnant women.
  Action:
  If you fall into any of these categories you are at high risk and should self-isolate at home.Others may also be at risk of fatality but the likelihood is lower and it is not possible to predict who falls into this category. It may in fact be more related to the level of exposure rather than the susceptibility of the individual.As with other exposures the quantity and concentration of viral load also effects the level of risk.

• Moderate to severe illness
  To whom?
  Again the higher risk is as for fatality and the most susceptible should be self isolating.
  Action:
  Everyone who is not self-isolating must be taking the precautions identified by national health advisors.The virus is not floating in the air and is contracted mainly by exposure to airborne droplets from coughing and sneezing, and from droplets on the skin and other surfaces which are in contact with skin, eyes, mucous membranes etc. Prevention should include:

1. 1. 1. 1. Social distancing (> 1 m, ideally over 2m)
         2. Hand washing, frequent and thorough, twenty seconds, create lather, wash back of hands, interlock fingers, wash each finger and thumb individually, see videos and broadcasts for more details
         3. Cough into elbow
         4. Self isolate if symptomatic or contact with other exposed person(s)
         5. Frequent hand washing may cause dry hands and cracked skin which may allow the virus to cross the skin barrier and enter into the blood stream causing infection. Keep hands moisturised or wear gloves if affected.
         6. If exposure is still likely, use a suitable respirator, protective eyewear, visor and gloves. Note simple dust masks or surgical masks will not stop the virus but may protect others if you have the virus. They become useless once damp so should be changed. A suitable respirator may be identified from the EN standards. FFP2 and FFP3 respirators should be effective.

• Mild to no symptoms
  To whom?
  Most people (80%) may have mild symptoms but may carry the virus to others.
  Action:A
  As above.

If exposed self-isolate for the prevention of spreading the disease to others.

B.CONTROL

Risk controls must then be applied, taking into account the requirement for potential exposure, susceptibility and exposure scenarios.

The principles of prevention must be applied:

1. Prevent exposure – eliminate the virus (not yet achievable)
2. Prevent exposure – substitute with a lower hazard (not applicable)
3. Prevent exposure – isolate the person from the hazard – this is currently the most effective control available and is achieved by self-isolation of those most at risk
4. Control exposure – use engineering controls such as guarding and ventilation – this is not readily achieved except in hospital conditions
5. Control exposure – administrative controls:

• • • • Warnings and Guidance;
      • Continual monitoring and measurement;
      • Procedures and practices; the HSE, NHS and other Government and Health organisations (including the WHO) provide guidance and instructions;
      • Training and awareness;
      • Regulations and legal constraints;
      • Closure of establishments with high risk of exposure;
      • Closure of all but essential organisations;

6. Control exposure – Personal Protective Equipment (PPE)
   Provision of PPE will not prevent exposure but may provide an effective barrier between the employee and the virus. Some examples:

• • • • Impervious gloves (nitrile for example): provides protection against the virus reaching the skin on the hands but may carry the virus for an undetermined period on its surface. Gloves provide no protection except to the user. Disposal of gloves must be implemented as if contaminated;
      • Surgical mask or ordinary dust mask (no or low protection factor): may protect others if you have the virus but protection is short lived and disappears when the mask becomes moistened. Disposal must assume contamination;
      • Specific particulate filtering respirators with defined protection factor will protect the user from the virus by reducing the quantity of virus particles reaching the breathing zone and the mucous membranes. US N95 or EU FFP2 or FFP3 particulate respirators claim filtration of virus and bacteria particles. Touching the respirator may contaminate the respirator and/or the hand or glove that touches it. Disposal must assume contamination;
        NOTE: Masks and respirators only provide protection if fitted correctly. Facial hair will interfere with the effectiveness of masks and respirators. Training is essential to ensure an effective fit. In general FFP2 respirators and above will have two straps, one to be placed over the head and fitted just above the neck, the other to be placed over the head and fitted toward the top of the head. The nose piece should be fitted down over the nose. If you blow upwards after fitting air should not escape around the nose.
      • Safety glasses: Safety glasses only protect the eyes from particles which are sprayed directly onto the surface. Gaps around the edges may permit entry of virus particles and the eyes are an entry point for the virus. If safety glasses, goggles or visors are used they must be thoroughly disinfected inside and out prior to storage or re-use. They should be for single user only;
      • Goggles: Most goggles provide a good seal around the eyes and should provide effective protection if worn correctly. Clean thoroughly and disinfect after use;
      • Face visor: Visors provide additional protection for the face but are obviously not sealed and thus should be used as an addition to a good respirator and goggles if exposure is possible. Clean thoroughly and disinfect after use;
      • Tyvek overalls: Will protect clothes and skin but must be disposed of as contaminated after use, and contact with the outside of the overalls should be prevented during and after use;
      • Barrier cream and moisturiser: Intact skin will provide protection from the virus, however broken skin, or skin which has been dried out and cracked from repeated washing may provide an entry point for the virus. Use of moisturising cream or barrier cream should reduce the likelihood of exposure. If in doubt, gloves should be worn as outlined above.

C. MONITOR EFFECTIVENESS OF CONTROLS

The indicators for effectiveness of controls are predominantly related to compliance with the designated measures. The virus may spread to employees irrespective of the employment controls. Monitoring of personal practices, distancing between employees, other employees and other people, checking in on personnel working from home; checking compliance with PPE requirements where applicable and seeking feedback from staff on the practicality of the controls may all be useful tools in assessing compliance.  Regular employee updates are recommended on how well controls are being implemented, as well as any further information that comes to hand.

Useful sources of information for employers:

COVID-19 Risk Assessment and Control for the Workplace training: https://www.sqt-training.com/programme/covid-19-risk-assessment-and-control-for-the-workplace/ 

C’M’S Law briefing on Corona Virus: https://www.cms-lawnow.com/?sc_

FLevy Corona Virus Dashboard: https://flevy.com/coronavirus

Employment law implications in Ireland:  COVID-19/Coronavirus-7 Employment Law Pay Scenarios; Lay-off and Short Time and Coronavirus-the Essentials; Force Majeure Clauses in the Employment Contract and the Coronavirus (Covid-19)

McKinsey: Implications for Business: https://www.mckinsey.com/business-functions/risk/our-insights/covid-19-implications-for-business

https://www.mckinsey.com/business-functions/organization/our-insights/leadership-in-a-crisis-responding-to-the-coronavirus-outbreak-and-future-challenges