COVID-19 and the increased risk of irritant contact dermatitis
Julie Byrne, Solicitor, outlines the effects COVID-19 is having on healthcare workers and the regulations surrounding the employers' duty of care
Dermatitis is a skin condition caused by contact with something that irritates the skin or causes an allergic reaction. It usually occurs where the irritant touches the skin, but not always.
It is a condition that all employers, especially those who use chemicals, must be aware of and must take steps to assess.
Perhaps now more than ever, with the increased use of skin cleansing products to reduce the risk of infection, the importance of recognising dermatitis, its effects, how any adverse reactions can be minimised and what must be done to show that you have complied with your duty as a good employer, is vital.
What does it look like?
There are two common types of dermatitis: irritant contact dermatitis and allergic dermatitis. The former is a non-immunological condition caused by exposure to an irritant and the latter by an immune reaction to a substance.
If you look at pictures of skin that has dermatitis, you could see redness, scaling/flaking, blistering, weeping, cracking, swelling or, often, a combination of several symptoms. Not only is the condition embarrassing for the sufferer but it can also be itchy and painful and, left untreated, it can result in the sufferer being left unable to carry on at work.
Irritant contact dermatitis is a condition that has come to the fore for employers of healthcare workers of late as it is caused by exposure to a strong irritant, which can produce symptoms very quickly, or over a longer period, from repeated contact with weaker irritants.
The effects of COVID-19
For healthcare workers, irritants are usually chemical or biological but it does not have to be a synthetic product that causes dermatitis - repeated and prolonged contact with something as natural as water (e.g. more than 20 hand washes or having wet hands for more than two hours per shift) can also cause irritant dermatitis.
As a result of repeated, and increased, handwashing by healthcare workers in order to reduce the spread of COVID-19, it is reported that 59% of workers (based on an audit of 200 workers seen in skin care clinics set up during the pandemic) were found to be suffering from irritant contact dermatitis.
The employer’s duty of care
Reports and articles are beginning to appear in industry publications (see ‘Personnel Today’ 3 Sept 2020), and it has the potential, if it has not already, of drawing the issue to the attention of lawyers and those who would see it as a potential financial windfall against an already financially struggling health service.
The legislation which sets out the obligations on employers in relation to working practices and protection of employees from exposure to hazardous substances at work are the Control of Substances Hazardous to Health (COSHH) Regulations 2002.
The COSHH regulations apply to ‘any substance hazardous to health’; the definition of this is wide but, for the purposes of this update, all substances which cause occupational dermatitis fall within the definition of ‘substances hazardous to health’ under the regulations.
The regulations require employers to prevent employees’ exposure to hazardous substances and, in the event this is not reasonably practicable, any exposure must be adequately controlled.
It is not feasible to ask health workers not to wash their hands or use hand gel; if the instruction were issued generally there would be pandemonium but to even reduce the frequency of handwashing during a pandemic (that can be transmitted via contact) would be absurd, therefore prevention of exposure is not practicable.
It means that lawyers will focus their attention on whether any exposure was adequately controlled. The principles outlined in the regulations require an employer to introduce control measures to eliminate, or control, exposure to harmful substances. An employer can protect its employees’ health, and its own interests, by:
- Monitoring and assessing the risk - look at safety data sheets and employ any recommendations contained within, consider alternative methods of doing what needs to be done, introducing PPE etc. Documented risk assessments should show how you have reached your informed decision.
- Informing and training - all employees should be made aware of the hazards they face and the risks from the substances with which they work. Keeping a record of who undertook training and what that training consisted of is paramount.
- Health surveillance - introduce a system of health surveillance to ensure cases are identified quickly and the employer can take steps to reduce/remove any further exposure. An employer’s duty under regulation 11 is to ensure that employees exposed are under suitable health surveillance at intervals of not more than 12 months – or shorter intervals if the OHU doctor advises or requires. The point here is that the regulations aren’t particularly perspective and you must adhere to the OHU advice. It follows therefore that once an employee reports symptoms it’s essential that the referral is timely and the OHU advice is followed – we have often seen cases where there has been delay or failure to follow the OHU guidance following assessment.
- Given the increased use of sanitisers leading to dermatitis, it is also essential that under regulation 12, dealing with information, instruction and training, that employers ensure that employees are aware of risk, risk assessments, symptoms and conditions and health surveillance so that they know the procedures to follow and how and when to report any symptoms.
Of course, there is nothing better than employing best practice from the outset and one way you can protect your employees (and yourself) from the effects of irritant contact dermatitis is to have any potential employees complete a pre-employment health questionnaire which specifically asks about skin conditions and susceptibility to them. Following employment, regular health questionnaires should be completed so that early identification of any issues can be detected and a referral to occupational health can be made.
What is apparent from the discussion above is that documentation is key! Not only are you protecting your employees and nipping issues in the bud but, if you cannot show that you have suitably assessed a risk, trained/instructed your employees and/or had them complete regular health questionnaires then you leave yourself open to a finding of fault should the claimant lawyers take that step and try to take advantage of the regrettable consequences of the COVID-19 pandemic.
Whilst a claim can no longer be founded for breach of the COSHH regulations, it does not mean that they can be ignored, or that they are no longer important, as failure to comply is something which a court will consider when determining whether an employer has been negligent.
You will, undoubtedly, already assess the risk of exposure to hazardous substances but how many of you provide training and information to employees about the risks associated with increased hygiene? How many conduct regular health surveillance on your employees? It is never too late to start and both you and your employees will be glad that you did!