Changes to COVID laws does not change employer’s obligations on Health and Safety

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In England much has been made of the changes this week to the government roadmap with the removal of a great deal of legal restrictions in relation to controlling the risk of people developing COVID-19.

There remain different rules for Wales, Northern Ireland, and Scotland, and individuals living in or travelling to these areas should familiarise themselves with them. More information for all nations can be found at https://www.gov.uk/coronavirus

Many of the public health measures enacted through COVID legislation have their origins in Health and safety legislation. Either based on the principles of prevention, following something known as the hierarchy of control, which seeks to remove or reduce the risk by  introducing various measures such as avoiding or reducing contact, or the controlling the mode of transmission i.e., Lockdowns, Social Distancing, Hand Hygiene, Face coverings (Hand, Face, Space, Fresh Air)

Within workplaces across the UK, employers have a legal duty to protect both employees and non-employees (who may be affected by their undertakings) from the risks to health presented by the transmission of the SARS-CoV-2 virus within their workplace.

Therefore, employers need to undertake a “suitable and sufficient” risk assessment which seeks to identify the steps they need to take to remove or reduce the risks “as far as reasonably practicable”. This can still include encouraging people to use social distancing and wear face coverings and other mitigations.

One of the specific pieces of legislation covering workplaces is the: Workplace (Health, Safety and Welfare) Regulations 1992 / Workplace (Health, Safety and Welfare) Regulations (Northern Ireland) 1993

This legislation is often referred to as the “Welfare Regs”, and has been a requirement for nearly 30 years and covers issues such as temperature, ventilation, and much more. The next two sections will hopefully help answer some of the questions you may have about this.

Ventilation! ventilation! ventilation!

 Reg 6(1) of the Welfare Regs says:

Effective and suitable provision shall be made to ensure that every enclosed workplace is ventilated by a sufficient quantity of fresh or purified air.”

When referring to fresh air it is generally considered the air being brought in from outside is fresh with all reasonable steps taken to smells such as vehicle exhaust, kitchen cooking extractor fumes, tobacco smoke etc.

For most buildings this is achieved using opening windows or specific ventilation systems which may filter and condition the air to a specified temperature. As the pandemic has progressed the importance of good ventilation in helping to reduce the transmission risks of airborne virus particles indoors has been proven.

As part of the many meetings that Napo Officers and Officials have been involved in, through joint working and consultation processes with employers, we have been seeking to ensure that they are putting the  health and safety of their staff at the forefront of service delivery. We have been informed that the Cabinet Office   has instructed the Ministry of Justice to undertake a full ventilation survey and assessment of all their properties, identifying the suitability of rooms for different activity and occupancy levels.

This information well then help inform the local risk assessments and suitability of rooms. Should members have any concerns about the suitability of a room they should talk to their local health and safety rep or manager in the first instance.

Is it me or is it getting hot in here?

Two of the most common questions members asked of Health and Safety Reps are, what the minimum or maximum working temperatures?

Reg 7 of the Welfare Regs says

“(1) During working hours, the temperature in all workplaces inside buildings shall be reasonable.

(1A) Without prejudice to the generality of paragraph (1) –

(a) a workplace shall be adequately thermally insulated where it is necessary, having regard to the type of work carried out and the physical activity of the persons carrying out the work;

and

(b) excessive effects of sunlight on temperature shall be avoided”

Whilst this legislation does not specify a particular temperature, the HSE have produced legal guidance which sets out that a reasonably comfortable temperature should be achieved throughout a workroom. It also says that for an office environment the minimum working temperature should be a least 16°C.

However, there is currently no recommendation for a maximum working temperature, and this has been something that unions have been campaigning for over many years. The TUC has this month launched a petition on this issue.

 https://www.megaphone.org.uk/petitions/we-need-a-maximum-working-temperature

Currently where the temperature in a workroom is uncomfortably high, employers should take all reasonable steps to achieve a reasonably comfortable temperature, by takeing steps like increasing fresh air ventilation and conditioning, shading windows or siting workstations away from places subject to radiant heat (sunlight).

It is only when all steps have been taken to achieve a reasonably comfortable temperature for the majority should localised heating or cooling be provided, whilst ensuring it does not present a new risk in relation to airborne transmission of viruses.

Particular attention is needed to support staff who have a medical condition or who are undergoing medical treatments, which may present them with difficulties in regulating their thermal comfort or risks to the management of their condition. For example, Menopause, Pregnancy, Sickle Cell, Cancers, Hormone Therapies etc.

Consideration should be given to all options to reduce the risks to these individual which can include but is not limited to, alternative working location in cooler office environments, more frequent breaks away from their work area, remote working etc.

The is a further legal requirement for employers to undertake a risk assessment for new or expectant mothers, once they have been notified. This should not be a one-off exercise, but remain a live document, reviewed at a minimum of each trimester of pregnancy or where they has been any change.

Desk Fans a HOT topic

As mentioned earlier, it is only when all steps have been taken to achieve a reasonably comfortable temperature for the majority should localised heating or cooling be provided

Due to the risk of transmitting airborne virus particles, the HSE has advised against the use of desk and ceiling fans in poorly ventilated area, (i.e. lacking in a good fresh air supply) 

As a result, this has seen a response from some employers by taking steps to remove desk fans. Whilst it is encouraging to see employers take proactive steps, there may be occasions where, following the assessment of risk, it is possible and appropriate to use a desk fan to support an individual’s need for better thermal comfort for example, in an office occupied by one person. 

So as with everything there is not a one size fits all approach and anyone with a specific need such as those identified in the previous section should contact their manager and discuss this with them.

“Pingdemic” - Contact Tracing notifications 

Whilst there has been a great deal of press coverage about people being notified via the track and trace app and required to isolate.  As well as speculation about possible “key worker” exemptions. There has been no discussion with any of the employers Napo is involved with.

Currently anyone using the app or contacted by track and trace teams must follow the advice to isolate for the required period, as this is still a legal requirement. So, members are advised that they must continue to follow all relevant and local guidance in relation to contact tracing.

Further information can be found at https://www.gov.uk/coronavirus

Members who wish to raise concerns about their Health and Safety should contact their Napo rep in the first instance but if this is not possible please e-mail hands@napo.org.uk