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What should I do if my business and workplace need to be open?

On 4 January 2021, the Prime Minister announced a third national lockdown in response to a significant rise in the number of COVID-19 cases. For the foreseeable future, workers should continue to work from home, rather than their normal physical workplace, wherever possible.

However, many businesses and staff are unable to work from home. Where this is the case, the Government has issued the following advice:

  1. All workers who cannot work from home should travel to work if their workplace is open.

This includes, but is not limited to, those who work in critical national infrastructure, construction, manufacturing, childcare or education and essential public services.

  1. Those who are required work in other people’s homes (e.g. nannies, cleaners and tradespeople) may continue to do so.

  2. Travel to work should preferably be by foot, bike or own transport, and people should avoid public transport and car sharing with those from outside their household or support bubble wherever possible. (Businesses will be expected to support this, e.g. by expanding bicycle storage facilities, changing facilities and car parking, where possible.)

Unfortunately, many of the population have no option but to use public transport to get to work. They may be anxious about this, despite the government requirement to use “face-coverings” when using public transport (or in enclosed areas of transport hubs) and to socially distance. To alleviate any anxiety and minimise risks, businesses should allow individuals to avoid peak travel times on public transport where possible, perhaps staggering working hours.

  1. Businesses must assess and manage risks to safety in the workplace and continue to follow “COVID-19 Secure” guidelines.
  1. Individuals are advised to reduce the number of people they spend time with/regularly come into contact with in a work setting, where possible.

Businesses should support this where practical, e.g.:

  • by changing shift patterns and rotas to keep the same “team” together each time;
  • by splitting people into smaller, contained teams; and
  • by taking reasonable steps to avoid people being gathered together, e.g. by allowing the use of more entrances and exits and staggering entry and exit.
  1. Those who are more “clinically vulnerable” to COVID-19 (including people aged 70 or older, people with liver disease, people with diabetes, pregnant women and others) should continue to take particular care to minimise contact with others outside their households, but do not need to be shielded.

You should give these staff particular consideration when conducting risk assessments and/or planning their return to work.

  1. The “extremely vulnerable” group (including solid organ transplant recipients, people receiving chemotherapy, renal dialysis patients and others) should continue to shield at least until the current period of lockdown is lifted. Those who cannot work from home should not attend work.

Given the extension of the Coronavirus Job Retention Scheme, which will be in place at least until the end of April 2021, employers can continue to furlough shielding staff, as before.

Health and safety

When planning for and asking staff to return to work, it is critical for businesses to protect health and safety and minimise the risk of contamination as far as possible. In order to do so, businesses will be expected to follow the COVID-19 Secure guidelines and any other official guidance from HSE, PHE etc, especially as HSE have the power to temporarily or permanently close down businesses where they believe there is a risk to staff or public.

The following key principles are set out in the COVID-19 Secure guidelines:

  1. Employees should work from home, if possible.
  2. Carry out a COVID-19 risk assessment, in consultation with workers or trade unions. When doing so, pay particular attention to clinically vulnerable employees and employees who live with someone “extremely vulnerable” who is still shielding.
  3. Reinforce cleaning processes. (As evidence suggests that the virus can exist on surfaces for 72 hours or more, frequent cleaning is particularly important for communal surfaces like door handles or lift buttons and communal areas like bathrooms, kitchens and tea points.)
  4. Remind visitors to wear face coverings, if they are required to so by law.
  5. Maintain 2 metres social distancing, wherever possible. Employers should put up signs and implement one way systems to encourage this.

Where people cannot be 2 metres apart, manage transmission risk (e.g. by providing screens between desks, better hygiene measures etc).

  1. Consider the ventilation of the workplace. Advice on air conditioning and ventilation is available from HSE.
  2. Take part in NHS Test and Trace and keep a record of all staff and contractors for 21 days.
  3. Require employees to self-isolate if they or a member of their household have symptoms. Those who are self-isolating must not be required to come in to work.
  1. Consider the mental health aspects of lockdown and COVID-19. Advice is available from the Government website.

The new guidance has also provided a separate guide for 14 different industries, aiming to cover a range of different work:

  • close contact services;
  • construction and other outdoor work;
  • factories, plants and warehouses;
  • heritage locations;
  • hotels and other guest accommodation;
  • labs and research facilities;
  • offices and contact centres;
  • other people’s homes;
  • performing arts;
  • providers of grassroots sport and sport facilities;
  • restaurants, pubs, bars and takeaway services;
  • shops and branches;
  • vehicles; and
  • the visitor economy.

Given the length of each guide, we won’t summarise them here but would encourage you to read through any which are applicable to your business. However, all the guides:

  • reinforce the importance of social distancing and hygiene measures;
  • remind businesses to prioritise controlling the risk of contamination at the workplace;
  • encourage home working where possible; and
  • provide practical tips for businesses where staff must return to their workplace, including:
    • using face coverings which are changed and washed daily;
    • regularly washing hands and creating hand sanitisation stations;
    • introducing one-way systems;
    • staggering arrival, departure and break times to avoid overcrowding;
    • designating outside areas as common areas where safe and possible; and
    • having meetings with essential participants only.

Refusals to return to work and potential claims

It is understandable that, after a prolonged period of home working/furlough/shielding, many individuals will be anxious about returning to work when the time comes.

As such, employers should keep staff regularly updated regarding their plans of how and when they will commence a phased return to work and should also promptly address any concerns raised.

Some individuals may refuse to return to work at all or to perform certain aspects of their roles. If there is no reasonable basis for such refusal, this may be a disciplinary matter. However, businesses should carefully consider the reasons for the refusal to ensure that they are not exposing themselves to potential claims. For example, what if the individual claims it is unsafe to return due to lack of PPE, inadequate sanitizer/handwashing facilities, the need to undertake group work and/or travel, inadequate social distancing, a vulnerable family member, having to use public transport…? The list goes on.

Tread carefully and seek advice in such scenarios to avoid potential health and safety or whistleblowing claims which will be costly, time-consuming and reputationally damaging.

Prepare for/deal with a diagnosis in the workplace

  • Nominate a point of contact whose responsibility it is to keep all employees up to date via an agreed communications plan.
  • Identify key positions which are essential for business continuity and ensure measures are in place to cover these positions in a worst-case scenario.
  • Ensure all emergency contact details of employees are up to date.
  • If there is a diagnosis in the workplace:
    • PHE has developed a set of early outbreak management action cards for various sectors, which outline the steps to be taken in the event of an outbreak.
    • Employers can alert employees that there has been a diagnosis in the workplace and direct them to the NHS website for guidance. However, do not name the infected employee, as that could breach GDPR obligations.
  • In some circumstances, Public Health England (PHE) will want you to contact them (e.g. if cases continue to increase or somebody has been admitted to hospital). It is very unlikely that PHE will require that the workplace close. However, you should follow all instructions from PHE at all times.
  • Consider relaxing any attendance management procedure where specified levels of absence trigger management in action, e.g. the Bradford Factor system, as this may encourage employees to come into work even if they feel unwell or may have been exposed to COVID-19.
  • Consider amending your procedure to specify that a period of absence caused by COVID-19 infection or self-isolation in accordance with PHE guidance will not be taken into account in deciding whether absence thresholds have been reached.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.

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