COVID-19 Secure Guidance: Keeping workplaces safe

COVID-19 Secure Guidance: Keeping workplaces safe

Following on from the Prime Minister’s announcement on 10 May 2020 modifying certain lockdown restrictions, the Government has now published new guidance on how employers can ensure that their workplaces are as safe as possible.

This Q&A will provide a brief summary of the new ‘COVID-19 Secure’ guidance and take a look at the legal and practical implications of asking employees to return to work bearing in mind that this is likely to change over the coming weeks.

This Q&A is a guideline and does not constitute legal advice. The guidance provided is correct as at 18 May 2020 and reflects provisions of the Government’s ‘COVID-19 Secure’ guidance. The changes in the Government’s policy will apply in England only but should be considered alongside local public health and safety requirements for Scotland, Wales and Northern Ireland.

If anyone has any questions leading on from this guidance, they should contact a member of our Employment Team at emp@teacherstern.com.

1.    What has changed?

The Government’s initial position had been that all employees should work from home if possible and only leave their home to attend their workplace if absolutely necessary.

The Government has now introduced a “change of emphasis” and announced that employees should be actively encouraged to return to work if they cannot work from home. However, those employees returning to work should try and avoid public transport, if possible which will obviously be difficult for many of those who live and work in cities.

There has been no change in the types of businesses that should remain closed to the public (e.g. pubs, gyms, restaurants and cinemas) but businesses that have been permitted to remain open and whose employees are unable to work from home will be able to have their staff return to work.

2.    When can we reopen?

The modified changes to England’s lockdown measures came into effect on Wednesday 13 May 2020. However, there are a number of steps employers should consider (see point 3 below) before re-opening which are likely to take time to implement.

3.    How can we determine whether our workplace is safe to reopen?

Employers will remain bound by all the usual health and safety obligations to ensure a safe place of work. As at the date of this guidance, the Government advice still remains that businesses should take every effort to allow working from home where possible. You should only re-open your workplace where it is not possible for your employees to carry out their jobs from home.

The Government has published sector-specific guidance documents for employers which can be found here. Although there are distinctions in the guidance varying between industries, there are some key points that apply to all employers:

Risk assessments

• As per existing health and safety law, businesses should regularly carry out risk assessments, but employers are now being asked to ensure that their risk assessments are revised to identify the extent to which they might be exposing their staff to contracting and/or spreading COVID-19. The COVID-19 Secure Guidance also states, where possible, employers should be publishing the results of their risk assessments on their websites and there is a clear expectation of larger employers with more than 50 employees to adhere to this.

Consultation

• Employers have a duty to consult with staff (and unions) on the steps they are taking to manage the risk of COVID-19 in the workplace.
• Employers should also ensure that their employees emergency contact details are up-to-date.

There is currently no requirement to carry out tests on employees to determine whether they display symptoms of the virus or the virus itself. Employers should be aware that carrying out such tests will constitute data processing and therefore will require compliance with the GDPR and Data Protection Act 2018. The ICO has released guidance on the things employers will need to consider if carrying out testing at work.

4.    How can we consult our employees before ‘actively encouraging’ staff to return to work?

When considering which employees are likely to wish to return to work, employers should avoid making assumptions (even if they are well meaning) as they could lead to claims of discriminatory conduct.

Circulating surveys amongst the workforce in advance is advisable as is encouraging virtual meetings to discuss all aspects of the return to work. Here are some examples of questions you could ask in your survey:

1. How comfortable do you feel returning to work in the office?
2. Do you have any concerns you have about returning to work in the office?
3. Which of the following policies would you be uncomfortable about if implemented or required when returning to work in the office? (staggering hours, wearing masks at work, partitions, temperature checks)

You could also consider asking for volunteers to return to work ahead of actively encouraging all staff.

5.    Are there any practical steps we can take to ensure that our employees remain safe whilst at work?

There are several things you can do protect your employees from the risk of COVID-19. The Government’s industry specific guidance sets these out in detail but we have set out the main areas of consideration below.

Social distancing

• Workplaces should be re-designed and/or reconfigured to allow members of staff to maintain a distance of 2 metres from one another. For example, by creating one-way walkthrough systems in sections of the workplace, changing floor plans and seating layouts or staggering start times to ensure that the workplace is not at maximum capacity.
• Use of lifts should be avoided where possible to avoid staff gathering in confined spaces.
• Place a temporary ban on social events at work such as group lunches and after-work drinks.
• Physical meetings with large groups of people should be prohibited unless absolutely necessary. You can encourage employees and external visitors to utilise technology for meetings instead.
• Creating a system to ensure the use of bathrooms is staggered.

Manage transmission risk

• If social distancing will not be possible, employers are encouraged to minimize the number of people that will be in contact with one another in the workplace by introducing shift patterns, using partitions to divide up shared spaces or ensuring that colleagues are facing away from each other.
• If you operate from a multi-tenant site/building, you might need to collaborate with other landlords to ensure consistency across common areas, for example, receptions, lifts, staircases.
• If your office operates a hot-desking policy, this should be avoided, and individual workstations should be assigned to employees.

Hygiene

• Employers should be increasing the frequency of cleaning in the workplace and ensure that the office is thoroughly deep cleaned on a regular basis. You can also provide hand sanitizer and anti-bacterial wipes to staff to encourage hygiene.
• There should also be increased handwashing for employees returning to work. Employers can build awareness of good handwashing technique by putting up appropriate signs and posters.
• If applicable, consider providing PPE to your staff. The level of PPE required will, of course, vary between workplaces but if possible, you should provide employees with gloves and masks.
• If you have a staff canteen, you should avoid opening this up and provide alternative packaged meals or encourage staff to bring in their own food.

6.    What can employers do to safeguard the mental health of their employees?

In these unprecedented times, many will be suffering from mental health issues and employers should review the support that they are able to provide preferably well in advance of any planned return to work.

7.    Are there any categories of employees we should give special consideration to?

Yes, the Government guidance states that those falling into the extremely vulnerable and high-risk categories who have been advised to shield at home “should be helped to work from home, either in their current role or in an alternative role”. Therefore, there is an obligation on employers to accommodate for these employees to ensure they can remain working from home. As some of these employees may also be considered disabled for the purposes of the Equality Act 2010, this would be in line with your usual duty to provide reasonable adjustments. You may also need to consider making such accommodations for individuals who live with people who are in the extremely vulnerable category. If it is not possible to make alternative arrangements for these individuals, you could consider furloughing these employees. We provide further guidance on furloughing in our article here.

Additionally, you should give special consideration to pregnant employees, employees over 70, employees with childcare responsibilities and those with underlying health conditions (bearing in mind the confidentiality attached to the employer’s awareness of such conditions). If it is not possible to accommodate remote working for such employees you should ask them to offer to work only if you are able to provide a safe option for them to do so (e.g., where they can keep a 2 metre distance from other colleagues).

8.    Can we insist that employees come into work?

A survey conducted by the TUC during April 2020 found that 41% of those surveyed were worried about the health implications of returning to the workplace and employees’ reservations about returning to the workplace are understandable given the prevailing uncertainty.

Employers should avoid threatening employees with disciplinary measures or dismissal if they are unwilling to return to work due to a risk of contracting COVID-19, as this could give rise to a claim. All employees have the right not to be subjected to any detriment on the grounds that they refuse to return to work in circumstances ‘where they reasonably believe there to be serious and imminent danger’. If an employer were to dismiss an employee in these circumstances, this would constitute automatic unfair dismissal. The employee would be able to issue a claim in the employment tribunal (irrespective of whether they have 2 years’ service) and any such claim might well be accompanied by a whistleblowing claim against the employer.

In addition, the employer might well be subject to enforcement proceedings by the Health and Safety Executive for breach of its obligation to provide a safe working environment. The latest update from Boris Johnson suggested that HSE would be stepping up its monitoring.

If all reasonable steps have been taken in respect of health and safety but an employee refuses to return to work, there are other options which an employer could consider such as encouraging an employee to take some of their holiday entitlement or unpaid leave – neither of which are long-term solutions. There may come a point in the future where employers can take disciplinary action against employees refusing to attend the workplace, but this will depend on the individual circumstances of the employer. For specific advice pertaining to your circumstances please contact our Employment Team at emp@teacherstern.com.

Author – Neha Solanki