COVID-19: healthcare employers’ obligations to protect staff

As this is a fast moving topic, please note that this article is current as at 23/04/20. For further information, please contact Cindy Tsang, Danny McShee or Stephanie Power. 

The impact of the outbreak of COVID-19 on the health and wellbeing of health and social care workers is likely to be significant and long lasting. Measures will need to be put in place to protect and support staff, including risk assessments, infection control, PPE, training, identifying high risk groups, working from home and adequate communication.

We have set out below some guidance to assist in implementing such measures.

Supporting staff

It is anticipated that many health and social care workers working in the current circumstances will develop mental health conditions that may include anxiety, depression, post-traumatic stress disorder, and complex grief. Compassion and connection will be the most important interventions that an employer can offer its workforce.

Line managers will need to be able to deal with emotionally charged conversations and should be trained to recognise the signs of stress and trauma. Employers should ensure that specialist psychological services are available and equipped to respond.

An e-learning programme has also been developed by Health Education England, for “the entire UK health and care workforce, including those working in the NHS, the independent sector and social care”, providing key materials to help them respond to COVID-19.

A number of anonymous resources have also been made available by NHS England and Improvement, such as a free counselling helpline for NHS staff, operated by the Samaritans and Hospice UK.

Organisations should consult with their Occupational Health (OH) provider to explore all possible support services for the workforce. Quick access to OH mental health services is recommended.

Collective, transparent and open messaging from management regarding the support available is key. Staff also need to know that their employer recognises how hard they are working.

Respiratory Protective Equipment

The government’s guidance on Personal Protection Equipment (PPE) requirements for health and social care workers working with COVID-19 is being updated frequently. The PPE guidance covers all elements of clinical PPE (including gowns, coveralls, gloves and goggles) and healthcare employers must stay up to date with all PPE guidance to ensure as far as practicable that it is being followed.

In this article we focus on the current guidance in relation to Respiratory Protective Equipment (RPE). RPE guidance specifies the type of RPE that must be worn in different clinical settings and it outlines that there are certain circumstances when an FFP3 type face mask must be worn – essentially in the highest risk areas of hospitals (for example, where aerosol generating procedures are being carried out, in higher risk areas containing possible or confirmed cases of COVID-19, or as indicated by local risk assessment).

Legal requirements and guidance on RPE

The law requires that all staff who are required to wear an FFP3 mask must be fit tested for the relevant model to ensure an adequate seal or fit. Trained fit testers and specialist testing equipment are needed in order to enable fit testing in line with Health and Safety Executive (HSE) guidance.

The HSE has recently published guidance as to how face fitting and satisfactory fit testing can be achieved in line with social distancing measures. In addition, in an attempt to ease supply issues, the HSE has also confirmed that FFP2 and N95 respirators (which also require a fit test to be successfully carried out before use) may be used for COVID-19, if FFP3 respirators are not available.

More recently, in the last few days, the HSE has approved new government guidance which temporarily relaxes the rules on reuse of RPE, but only in circumstances where there are acute shortages, and where it is safe to do so. Any relaxation must be in line with the government’s guidance and requires a documented process setting out how any re-use will be managed, including a record of systems of work to manage how integrity checks and decontamination processes will be carried out.

Notwithstanding the attempts to ease supply issues, many employers in the health and social care sector are facing significant challenges regarding the supply and fit-testing of masks, including that the type of mask being supplied is changing very frequently (meaning a fit test is required for each type of mask) and, as a consequence, there is not enough fit testing equipment to cope with the number of fit tests required. Healthcare providers are understandably concerned that the onerous requirement to fit test each new type of FFP3/FFP2/N95 mask is resulting in much needed medical resource being taken away from the front line.

The HSE has confirmed that fit testing requirements, and the law on the safety risk arising and the control measures that must be put in place to control exposure to employees and others has not changed. Therefore, save for in line with any approved guidance from the HSE as outlined above, there will be no relaxation even where other novel arguably “reasonably practicable” measures are available to suitably control the risks.

We recommend that employers keep staff updated in relation to the provision of RPE and ensure as far as practicable that HSE guidance is being complied with. Where issues with supply and fit-testing of masks arise, we would encourage healthcare providers to raise their concerns with the HSE or the government as appropriate, to communicate the significant challenges and practicalities being faced across the sector.

Vulnerable employees

Public Health England (PHE) have provided guidance for those individuals defined on medical grounds as ‘vulnerable’ and ‘extremely vulnerable’.

It is important to identify high risk groups. Once identified, in light of PHE guidance, we strongly recommend that arrangements should be made to ensure vulnerable employees follow social distancing guidance and work from home. If an individual usually works in close proximity to others, which is highly likely in a healthcare setting, redeployment to a role which can be done from home (whilst operationally challenging) is the most appropriate way to ensure protection. 

Pregnant employees

PHE have advised that all pregnant women are deemed “vulnerable” and should exercise social distancing and minimise contact with others.

We therefore recommend that employers conduct risk assessments for all pregnant employees, in conjunction with OH. If it is found that an employee or their unborn child would be at risk if they continue with their normal duties, the employer should provide suitable alternative work, that does not involve direct patient contact, on the normal rate of pay.

Events outside work

Should any performance or conduct issues arise, we recommend that managers remain mindful of external factors which may have influenced an individual’s behaviour and ability to make decisions. The COVID-19 outbreak has affected all aspects of an individual’s life outside work, including personal finances and relationships with family and friends. Any disciplinary action, without consideration of these mitigating circumstances, would inevitably be deemed unfair.

Many NHS Trusts are extending on-site bereavement counselling and facilities to the workforce, which is commendable. It is important that staff exercise the right to take bereavement leave, to ensure that staff have appropriate time away from work to deal with their loss.

Where a member of staff has taken sickness absence (regardless of whether this was due to COVID-19), a return to work interview should still be conducted in accordance with the organisation’s usual sickness absence procedures, with input from OH. The employer needs to assess whether the individual is fit to return to duties, whether any adjustments to their role are appropriate or whether a short term redeployment is required. This is necessary to ensure a safe working environment for all, and to maintain a good standard of patient care.

Read others items in Healthcare Brief: COVID-19 edition - April 2020