When is hearing protection optional and when is it compulsory?
The Noise Regs contain provisions for when either may apply, so in some areas it may optional while in others it is compulsory, with the deciding factor being the noise exposures involved.
Noise levels of 80 to 84dB(A)
If the noise assessment identifies exposures in this range, then hearing protection must be provided by the employer, employees should be told it is available, they should be informed about the dangers of excess noise, and then it is up to them if they choose to wear it or not. Usage is therefore optional.
This is covered by Regulation 7 in the Noise Regs. Technically the Regs say hearing protection is optional between the two limits of 80 and 85dB(A), and then say it is mandatory from 85dB(A) upwards. In reality, in a noise assessment a point of a decibel, (e.g. 84.3) is always rounded up or down to the nearest whole number, meaning 84.4dB(A) is rounded down to 84dB(A) so hearing protection is optional, whereas 84.5dB(A) is rounded up meaning it becomes 85dB(A) and hearing protection is mandatory, hence identifying it as 80 to 84dB(A) above.
Why set it at this noise level?
The theory behind this is that at 80 to about 85dB(A), a small number of people who are particularly sensitive to noise have a slight change of developing hearing loss from regular long term exposures.
Noise levels of 85dB(A) and over
Once the noise levels hit 85dB(A), then there is no choice but to wear hearing protection and it is no longer optional - wearing it is compulsory and both the employer and employee have no choice in this.
Why set it at this noise level?
The medical bit behind this is that once noise levels reach this and above, then the majority of people exposed to these noise levels regularly and for long periods will have some form of hearing damage, with that risk then increasing with increasing noise levels.
Employers choosing to enforce use of hearing protection below the 85 dB(A) limit
HSE comments on effective hearing protection policies
An employer cannot do less than the Regulations but can do more and some choose to have hearing protection set as mandatory from levels below the 85 dB(A) limit. This is perfectly fine in law and is a choice the employer can make, and if they choose to say hearing protection is mandatory at these levels then they can do this. Non-compliance with this by an employee will usually result in disciplinary action as it would for any other failure to follow a health and safety instruction.
The best way to think of it is that the regulations set the minimum an employer can do, but they can go above and beyond if they wish, and enforce its use. In reality, a bit of communication and consultation between employers and employees can head off almost all conflicts arising from this.
It is worth highlighting why I underlined ‘in law’ above. Under the law there is nothing to stop blanket hearing protection policies, but even the HSE argue against doing that, but this is not law and is just an opinion from the HSE.
As an aside, I personally disagree with the HSE advising against employers enforcing hearing protection when the levels don’t make it legally mandatory. Not so long ago the exposure limit was 90dB(A) as that’s where accepted wisdom said the risk to hearing really began. Since then, some employer were sued for hearing losses caused by noise exposures to levels between 85 and 90 dB(A), levels where the law did not require hearing protection so the employers didn’t provide it. They were compliant with the law at the time. Those employers still lost their defence against the claims and were found liable. So if that could happen then when we thought 90 dB(A) was the magic cut-off figure, then who is to say that further down the line the same won’t happen with the current 85 dB(A) limit? I think the HSE advising employers not to enforce hearing protection where it is not legally required is perhaps rather blinkered and at best they should stay neutral on it. It is the employer’s choice to go beyond the legal minimum if they wish to.
Employees refusing to wear hearing protection - what happens then?
If an employee refuses to wear hearing protection because it is painful or they don’t like it, then it becomes a scenario for agreement and trial between the employer and employee, but there are limits on how far an employer can accommodate. What an employer cannot do is allow someone to continue to work knowing they are at risk.
Try alternative styles of protector, within reason.
If none are acceptable then move to a lower-noise job.
If none are available then the employee cannot be permitted to continue to be at risk, which can result in termination of employment.
Above it says alternate styles of protector ‘within reason’, what does this mean? If an employer has say 100 employees in a high noise area, and one insists no form of ear plug or ear muff is any use for them but says they want personally moulded ear plugs, chances are that this is beyond the criteria of ‘within reason’. For one person it would be perfectly fine, but what you do for one has to be available for all so it is not a case of one person moving from ear plugs costing maybe 10p to plugs costing anything around £80 to £150 and more, but all 100 now having that option.
An exception could be if one person has a medical condition and a GP or other specialist confirms a special type of hearing protector is needed. As this is then for medical grounds rather than the lesser standard of comfort or fit, then it can be treated as a special case and more latitude for accommodation is expected.
When hearing protection is worn in quieter areas, such as 81 or 82dB(A) at the choice of the employee, or its use is mandated by the employer, the employer must ensure that the users are not over-protected. This simply means the hearing protection used is too strong for the noise risk present. Ideally, under the hearing protection the users should be somewhere in the mid-70s dB range as that is a comfortable volume which does not cause isolation issues or lead to a risk of things like alarms going unnoticed. This means therefore that the strongest hearing protection is not often the best, and hearing protection which has a smaller reduction on the noise levels present is needed. This is known as ‘low attenuation’ protection of which there are many types on the market.
The Hearing Protection Data page on this site lets you sort the listed protectors by SNR (or HML) to identify the ones with the smaller impact on the overall noise levels. Click on the SNR column to identify those with the lowest attenuation rates.
As a side comment, even for jobs exceeding the magic 85dB(A) level, the maxim of 'strongest protector is best' still is very much a false premise and over-protection risks do still remain.
Employee disclaimers and waivers
A common comment from employees is that they don't like wearing ear plugs or muffs, so they ask if thy can they 'just sign something' that they accept the risks and can then carry on not wearing anything. The answer to this is an unambiguous no.
The employer cannot disclaim responsibilities set out in legislation and it can also be deemed an unfair contract. So no, employees cannot sign disclaimers absolving their employer for any responsibility should they suffer hearing loss down the line as any such agreement has no legal weight or meaning.