Key workers and those providing vital services to the country have done an incredible job during the Covid-19 pandemic keeping the country functioning. Many have been unable to work from home and have kept the economy moving by going into work each day. Some of those have or will inevitably become ill or suffer the ultimate sacrifice and give up their lives as a result of exposure to COVID-19. In some cases that will have been unavoidable but in others a lack of sufficient Personal Protective Equipment will have played a part. Will they or their families be able to make a personal injury claim?
Employers have long since owed a duty of care to their employees at common law including the provision of PPE. This duty is extended through The Protective Equipment at Work Regulations 1992 and other regulations. When considering what PPE to provide an employer needs to consider the risk and gravity of injury versus how often the PPE is to be used and its availability. This duty does not change in an emergency situation such as the onset of Covid-19. Employers still have an obligation to balance the risk of contracting Covid-19 versus the measures they can take to try and minimise exposure.
The Control of Substance Hazardous to Health Regulations 2002 adds an extra requirement for employers to adequately demonstrate that reasonable steps were taken to either prevent their employees from being exposed to biological agents or, when this isn’t practicable, to adequately control it. Whether Covid-19 is a biological agent under the meaning of the Act remains to be seen but as SARS (also a coronavirus) was deemed to be by the HSE, Covid-19 is likely to be as well.
COSHH 2002 lays out the steps employers must take to control the virus when it’s impossible to prevent exposure including appropriate disinfection procedures, means for safe collection and disposal of contaminated waste, testing for the presence of biological agents and when contamination takes place or is suspected, taking measures to contain it.
One can envision that when the COSHH 2002 was drafted it was aimed at hazardous substances being used in the workplace but clearly it is also applicable to the exposure of one employee to another within a company. This places a very onerous responsibility upon employers and one can easily envision claims being successful on the basis that insufficient PPE has failed to control the spread of Covid-19 from one employee to another within the company and thus the employer being responsible for any harm that has come to their employees as a result.
COSHH 2002 also requires where appropriate making available effective vaccines for their employees who have been exposed or are liable to be exposed at work. Although no vaccine is available at the moment, what steps are employers going to need to take once one is available to control exposure in the workplace?
Each case will inevitably stand on its own facts. Did the employer provide sufficient PPE soon enough after the pandemic struck? Was there enough PPE to go around? Was it replaced after reasonable use?
We are all aware of the initial shortages of PPE due to the global reach of the pandemic. Employers will be able to defend an action on the basis that they can demonstrate that early on they identified what PPE was required and in what volume but that their reasonable efforts to obtain supplies were frustrated and they supplied what they could as quickly as it became available to them. Employers will however need to demonstrate that they revisited their requirements regularly as events unfolded and reacted accordingly as PPE became available.
The law around PPE in the time of Covid19 will develop over time but it is the actions of employers now which will ensure that they fall on the right side of those developments.