To PPE or not to PPE?

COVID-19 has led to pressures in getting safe and suitable personal protective equipment (PPE), including respiratory protective equipment (RPE). It has been just one of the many issues affecting not only the NHS, but also industries like manufacturing and construction.

PPE, RPE and more generally facemasks are now in common parlance - but what is PPE and what is an employer duty bound to do when providing it to employees and others?

The coronavirus outbreak has not changed an employer’s duty to protect its workers, or contractors, from hazards such as exposure to hazardous substances and contaminants.

PPE for protection against coronavirus is usually only required in a healthcare setting. In a non-healthcare setting, employers do not need to provide different PPE than they normally would have before the outbreak.

Face coverings may be marginally beneficial in preventing the spread of coronavirus as a precautionary measure, but they are not required in most workplaces and are not classed as PPE as they do not protect the wearer from the risks of inhalation of hazardous substances such as dust or spray.

This misconception is a likely contributing factor to the shortage in suitable RPE, and the manufacture and supply of unsuitable PPE (such as the one highlighted in this recent HSE update).

If your normal PPE is unavailable you should revisit your risk assessment, working through the hierarchy of controls in The Control of Substances Hazardous to Health Regulations 2002 (COSHH).

The first line of defence is to avoid working with the hazardous substance at all. If that is not possible, then you could look to substitute the hazardous substance for one that is less harmful, do the work another way to reduce exposure, or put in place other controls.

PPE should be a “last resort” and you should always try to find another way of working which either avoids or reduces exposure.

What if there are no supplies of your usual PPE available? Is it ok to use an alternative? Well, it depends. If the alternative does not conform to at least the standards of your usual supply, you might be tempted to conclude that something is better than nothing. However, a word of caution – that is probably not the case.

Providing unsuitable PPE for a job could be just as bad as not providing any PPE at all, and in many cases it will be better not to do the job at all until your usual PPE supply becomes available again. Providing PPE which has a lower level of protection than your usual PPE, or than your risk assessment indicates, could expose your workers to a risk of ill health and put you at risk of breaching of health and safety law.

PPE cannot be sold or supplied as such unless it is CE marked. There is one exception – where the UK Government procures PPE for use by the NHS or other healthcare workers and where HSE has undertaken assessments as to its suitability.

Despite this, the pandemic has inevitably led to an increase in individuals trying to sell non-CE marked counterfeit or non-compliant products in the UK, and presenting these as PPE. The UK authorities are aware of the problem and are taking measures to prevent the sale of counterfeit PPE.

The Personal Protective Equipment (Enforcement) Regulations 2018 provides the UK authorities with the power to fine and in the most serious of cases impose prison terms on manufacturers, importers and distributors for failure to comply with the regulations governing the production and sale of PPE.

Where non-CE marked products do enter the supply chain, market surveillance authorities are in place to pick up on these and evaluate and determine their compliance with essential health and safety requirements.

On occasion, they can allow the products to be sold for a limited period of time while a conformity assessment is carried out. In practice this means that a formal application must be made to a notified body tasked with determining whether the product meets an adequate level of health and safety.

Most recently one million face masks were intercepted at East Midlands Airport - and of these only 300,000 were deemed to offer suitable protection.

It is possible that some counterfeit PPE will enter the supply chain before such a determination can be made, which therefore places to onus on consumers - or employers making purchases to supply to their employees - to take active steps to ensure that the PPE they are using is fit for purpose.

For further advice on the use, manufacture and supply of PPE and other products, our Health and Safety and Product Liability teams are on hand to assist.