Managing Health and Safety of Staff in Care Homes

By Debbie Coyne, Employment Law Senior Associate at Aaron & Partners

These unprecedented times have created new and complex challenges for care homes.

As key workers, care home staff must go into the work- place to carry out their jobs and protect extremely vulner- able people. The government announced last week it is putting a £600 million package in place to support care homes and to tackle the rate of infection. However, employers still have a duty to protect the health and safe- ty of employees and consider the employment rights of employees carefully.

HEALTH AND SAFETY

The usual obligations on employers to protect the safe- ty of works continue to apply:

  • Section 2 of the Health and Safety at Work etc. Act 1974 imposes a duty on an employer “to ensure, so far as is rea- sonably practicable, the health, safety and welfare at work of all his employees”. Companies and directors face crim- inal prosecution if they fail to do so.
  • The Management of Health and Safety at Work Regulations 1999 sets out specific requirements for Risk Assessments and again carries the risk of criminal prosecution.
  • Employers also have a general common law duty to protect employees’ safety. Under section 44 of the Employment Rights Act 1996 employees who refuse to work may be protected from detrimental treatment/dismissal.
  • It is currently not clear if employees must be paid if they refuse to work on health and safety grounds. This has not yet been tested, but depending on the circumstances, it may be more commercially viable to treat it as unpaid leave and run the risk of claims for unpaid wages.
  • Employers could face civil negligence claims for Personal Injury from employees who contract the virus at work.

    Employers must continue to follow all normal health and safety procedures, including appointing a competent person to manage health and safety, carrying out, updating and actioning risk assessments, training staff and dis- playing health and safety information.

By Debbie Coyne, Employment Law Senior Associate at Aaron & Partners

GOVERNMENT GUIDANCE

Government guidance on PPE for the care sector continues to reinforce that those most at risk within the UK are professionals working in health and social care sectors. Infection control measures and PPE should continue to be used and processes carefully followed.

Full PPE (disposable gloves, disposable plastic apron, fluid-resistant surgical mask and eye protection where appropriate) is necessary when providing personal care which requires the employee to be in direct contact with residents or within 2m of someone who is coughing. Note that PPE is only effective when combined with hand hygiene, respiratory hygiene and avoiding touching your face.

Guidance advises to use a surgical mask when working within 2m of residents but without direct contact or when in communal areas.

WORKING TIME AND THE CORONAVIRUS JOB RETENTION (FURLOUGH) SCHEME

Many in the care sector are working flat out to protect the vulnerable. Employees can work more hours to cover staff shortages, but the Working Time Regulations 1998 still apply. This means:

  • –  There is a 48 hour a week limit, unless employees have opted out. The 48 hours is averaged over 26 weeks for resi- dential settings, so excess hours worked should be monitored to ensure there is no breach of the regulations.
  • –  Employees require a minimum 11 hour rest period between shifts. This can be taken in lieu if the employee is chang- ing shift pattern.
  • –  Employees require a 24 hour rest period each week, or 48 hours every fortnight.
  • –  Employees require 20 minutes’ break, away from their workstation every 6 hours.

    Given most care homes are busier than ever, furloughing employees is unlikely to be beneficial. However, con- sideration may be given to furloughing staff that have difficulties with caring responsibilities.

    SELF-ISOLATING AND SICK PAY

    Government and PHE advice is that anyone who displays symptoms of a high fever or a new persistent cough should stay home and self-isolate for 7 days. Anyone who lives with someone with these symptoms should also self-isolate for 14 days.

    Anyone self-isolating due to COVID-19 is entitled to receive statutory sick pay from day one, due to emergency changes in the law. Government guidance indicates that employers could agree to furlough someone who is self- isolating instead to protect the employers’ cash flow and provide greater financial support to the worker.

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