Wednesday, 1 December 2021
Workplace Ventilation (Covid-19) Bill 2021: Second Stage [Private Members]
I thank Deputy Paul Murphy and his colleagues for introducing the legislation. The Government is not opposing the Bill, which seeks to amend the Safety, Health and Welfare at Work Act 2005 to provide for a definition of sufficient fresh air bases on CO2levels in the workplace as an emergency Covid-19 prevention measure. The Government supports the principle behind the Bill and it will work with all involved on it.
Existing occupational safety and health legislation already creates a requirement for employers to ensure that sufficient fresh air ventilation is provided in enclosed places of work. It is acknowledged that close-range transmission can cause Covid-19 infection and that is why it is essential to adhere to public health advice on vaccination, physical distancing, wearing masks and coverings, hand hygiene, respiratory etiquette and, importantly, staying at home if one has any symptoms of Covid-19 or are feeling unwell.
The Government’s expert group on ventilation, in its second report published in March 2021, concluded that ventilation is an important factor in reducing the risk of transmission of Covid-19 particularly in enclosed places. Providing fresh air through ventilation and air filtration measures where necessary can provide practical and effective ways to facilitate clean air in enclosed workplaces. The objective of this proposed amendment is to put an additional focus on the importance of ventilation in workplaces, especially in the context of mitigating against the spread of Covid-19 in the workplace.
From the outset, the Government has committed itself to protecting workers from Covid-19. The development of the work safely protocol and the ongoing updating of it has been carried out as a partnership between Government, employer representatives and employee representatives in conjunction with key State agencies such as the HSE, the Health and Safety Authority, HSA, the Departments of Health and Agriculture, Food and the Marine, as well as my own Department.
The work safely protocol sets out the most up-to-date public health advice and measures to be taken in workplaces to prevent and to minimise the spread of Covid-19. The protocol has a specific section on ventilation that includes guidance on how to increase ventilation and on how to use CO2monitors to identify poorly ventilated enclosed areas. Many businesses and workplaces are already using these devices to identify poorly ventilated areas, but it should be stressed that a CO2monitor is simply a proxy for measurements of air circulation. It does not detect Covid-19.
While the Government can accept the principle underpinning the Bill, certain legal and practical aspects of it will require greater consideration between now and Committee Stage. I am happy to engage with Deputy Paul Murphy and his colleagues on that as well. I will touch on these briefly. On the legal considerations, legal advice will be needed as to which part of the Safety, Health and Welfare at Work Act 2005 is the most appropriate to amend. My officials have advised that it may be possible to achieve a speedier amendment by way of amending the section on ventilation in the general application regulations under the Act This will also enable further amendments made as necessary and could be a vehicle for introducing a more long-term focused approach on ventilation across our workplaces.
In the area of potentially unintended consequences, again I stress that Government supports the principle and objective of the Bill. However, some proposals require further practical consideration. With regard to the use of enforcement measures, such as improvement notices and prohibition notices, such measures are provided for under the 2005 Act and enforcement under the Act should be in line with an existing approach to occupational safety and health and, indeed, with the approach currently being taken to inspections of the work safely protocol.
The Bill, as currently drafted, is overly prescriptive. It might not be practical to use primary legislation to deal with every place of work. We believe that could be achieved in regulations. Workplaces in various sectors differ greatly from each other. The impact of CO2readings would have to be judged in the context of different workplaces with different workforces at different times. The Government’s expert group on ventilation also did not recommend the use of CO2measurements as an indicator of ventilation when there are CO2sources, other than people, present in the workplace. An example of this would be a kitchen setting or a setting where HEPA air filtration is in use.
The approach in the Bill, as currently drafted, particularly the prescriptive limit value suggested, could lead to unnecessary closures of workplaces based on a high CO2reading, especially where those workplaces operate in older buildings, such as schools, hospitals, etc, even when other mitigating measures are in place. It is also important not to create the impression or the expectation among workers that a particular CO2reading is the only or the main factor in mitigating against the spread of Covid-19 in a workplace. It has to be judged in the context of the nature of the workplace and other factors, including the infection prevention and control measures in place. The measurement of CO2levels has been recommended by the Government’s expert group on ventilation as an effective method for identifying poorly ventilated multi-occupant and enclosed indoor areas. The work safely protocol sets out how these monitors should be used in the workplace. It is clear, however, that a high CO2monitor reading is not a proxy for the risk of exposure to Covid-19 but rather for identifying poor ventilation. It is important that this is fully appreciated by those reading CO2levels as well as the fact that other sources of CO2can legitimately exist in certain workplaces.
The legislation does not provide for a HSA inspector to form an opinion as to whether an indoor workplace location has adequate ventilation. This will cause difficulties when other sources of CO2exist from workplace activities. The Bill as drafted is well-intentioned, but it will need some re-drafting to ensure it does not inadvertently deter employers and businesses from incorporating Covid-19 mitigations into their overall workplace risk assessment policies and practices.
Ventilation in workplaces needs to be looked at beyond Covid-19, as said by Deputy Barry and others already. This is an opportunity to put in place measures to bring about a longer term, sustainable and holistic approach to workplace ventilation. Workplace is required and I would strongly argue that this flexibility can be found in regulations as opposed to primary legislation.
Regarding the role of inspection bodies and the Health and Safety Authority, although the Bill might appear to offer a pragmatic approach, I am sure the Deputy will recognise that it is not possible for every single inspectorate to monitor every workplace or carbon dioxide monitor in the country. While I want to ensure the objective of the Bill can be delivered in an effective and efficient way, I also want to avoid creating an unbalanced burden on the Health and Safety Authority to the detriment of its other work areas. Given the sheer number of workplaces covered by this proposed legislation, care will be needed in determining it will work in practice so that only the most high-risk settings in the case of breaches require an on-site inspection. We can work through that with the Deputy and address the regulations.
The Government supports the objective of this Bill. I assure the Deputy that my officials and I will work with him to determine the best approach to achieve these objectives. My officials will engage with the Health and Safety Authority to determine the best mechanisms to deliver the objectives of the Bill, including carrying out inspections and compliance checks across workplaces to determine the potential impact on the Health and Safety Authority and how impacts can be addressed. Officials from the Health and Safety Authority and my Department would like the opportunity to meet Deputy Paul Murphy prior to Committee Stage to discuss the Bill and how its objectives can be achieved speedily and implemented in an effective and practical way. I hope the Deputy takes that as a commitment to genuinely work with him on this. It is not a case of sending it to the committee and setting it to one side. We believe it is worth working through this legislation to get it right and to maybe focus on regulations as a quicker way to do it. I will contact the Deputy this afternoon to organise that and to move this forward.