Published Date: July 01, 2009
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Section 228 Duty to use personal protective equipment
If the hazard assessment required by section 7 of the OHS Code indicates that PPE is required, the employer must ensure that workers wear and use the required PPE properly. Ensuring that workers have and wear their PPE is not enough. The employer must ensure that the PPE is used properly.
The OHS Code requires employers to provide PPE in a limited number of situations where, for example, there is a breathing hazard or where noise exposure limits are exceeded. This section does not require employers to provide PPE such as hard hats, safety boots, flame resistant clothing or eye protection. Where such equipment is necessary, employers must make sure that workers use it.
Regardless of who supplies the PPE, subsection 228(1)(c) makes the employer responsible for ensuring that the PPE is in a condition to perform the function for which it was designed. Cracked eye protection, worn out safety boots and excessively dirty flame resistant overalls are examples of conditions that employers need to be aware of and either correct or have corrected.
For PPE to be effective, workers must be trained in its correct use, care, limitations and assigned maintenance. The employer is responsible for providing this training. Workers must be aware that wearing and using PPE does not eliminate the hazard. If the PPE fails, the worker will be exposed to the hazard. Workers need to understand that PPE must not be altered or removed even though they may find it uncomfortable – sometimes equipment may be uncomfortable simply because it does not fit properly.
Employers exceeding the requirements of Part 18
This Part uses language such as “If a worker’s eyes may be injured or irritated …”, “If a worker may be exposed to a flash fire …”, “If the hazard assessment identifies that protective footwear needs to …”, and “If there is a foreseeable danger of injury …”. In all cases, it is the employer’s responsibility to assess the significance of the relevant hazard and determine if workers should use a particular type of personal protective equipment.
There are situations in which no foreseeable danger exists – either at a portion of the work site or at the entire work site – yet an employer still requires that workers use a particular type of personal protective equipment. In such situations the employer has usually set a blanket policy that all workers must use the personal protective equipment regardless of where workers are to on the work site and regardless of the presence or absence of the hazard.
Employers have the freedom to set and enforce such a policy as the policy does not violate the requirements of the OHS Code. Such a policy does in fact exceed the minimum requirements of the OHS Code. The reason for an employer instituting such a policy often has to do with ease of enforcement at a work site i.e. everyone wears the personal protective equipment all the time so there is no discussion as to whether a worker should or should not be wearing it at a particular time and location at the work site.
When a worker questions the authority of the employer to set such a policy, Workplace Health and Safety confirms that the policy exceeds the requirements of the OHS Code and it is the employer’s right to do so. If a worker chooses to contravene the employer’s policy, the resulting situation is a personnel issue, not a safety issue.
Workers have several obligations. Workers must use PPE according to the training and instruction they receive. Workers must inspect PPE prior to use and not use PPE found to be in a condition that makes the PPE unsuitable for use. For example, if a worker required to use a self-contained breathing apparatus (SCBA) cannot get a good facial seal because the face piece is too small, the worker must not use the apparatus. Subsection 14(2) of the OHS Regulation requires workers to report this situation to the employer so that it can be corrected.
The use of PPE must not itself endanger the worker. Examples of such situations are:
(a) safety toecaps in place of protective footwear – a worker wearing toecaps should not be required to do much walking around the work site. The toecaps may create a tripping hazard;
(b) a poorly fitting suit worn to prevent exposure to chemicals may not seal well at the wrists and ankles; and
(c) a faceshield covered with dirt and debris may affect a worker’s ability to see clearly.