Follow government guidance
In the Plan to Rebuild published by the government on 11 May 2020, the key aspects for employers are as follows:
- For the foreseeable future, workers should continue to work from home rather than their normal physical workplace, wherever possible, i.e. no change!
This will minimise overcrowding on transport and public places with those that are having to attend their workplace.
- All workers who cannot work from home should travel to work if their workplace is open.
- Sectors of the economy that are allowed to be open should be open, e.g. food production, construction, manufacturing, logistics, distribution and scientific research in laboratories. (Non-essential retail is currently anticipated to open in phases from 1 June and some hospitality from 4 July.)
- As soon as practicable, workplaces should follow the new “COVID-19 Secure” guidelines.
- Travel to work should preferably be by foot, bike or own transport, and people should avoid public transport wherever possible. (Businesses will be expected to support this, e.g. by expanding bicycle storage facilities, changing facilities and car parking, where possible.)
Unfortunately, this is not realistic for many of the population, who will have no option but to use public transport.
Whilst the government now recommends using “face-coverings” if using public transport (or other public spaces) and continues to advise social distancing measures, this may not alleviate the anxiety of those obliged to use such transport to get to work.
- Businesses should allow individuals to avoid peak travel times on public transport where possible, perhaps staggering working hours.
- 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.
- Businesses must assess and manage risks to safety in the workplace.
- 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.
- The “extremely vulnerable” group (including solid organ transplant recipients, people receiving chemotherapy, renal dialysis patients and others) should continue to shield until the end of June and possibly beyond that.
Given the extension of the furlough scheme, 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.
Five key principles are set out in the COVID-19 Secure guidelines, to be implemented by businesses as soon as possible. These are all self-evident and do not take us much further forwards:
- Work from home, if you can.
- Carry out a COVID-19 risk assessment, in consultation with workers or trade unions.
When doing so, pay particular attention to clinically vulnerable employees (e.g. those aged 70 or older, diabetics, pregnant employees and others who have underlying health conditions or weakened immune systems) and employees who live with someone “extremely vulnerable” who is still shielding.
- Maintain 2 metres social distancing, wherever possible.
- Where people cannot be 2 metres apart, manage transmission risk (e.g. by providing screens between desks, one-way systems for movement around the office, better hygiene measures etc).
- Reinforce cleaning processes. (As evidence suggests that the virus can exist for up to 72 hours on surfaces, frequent cleaning is particularly important for communal surfaces like door handles or lift buttons and communal areas like bathrooms, kitchens and tea points.)
The new guidance has also provided a separate guide for 8 different industries, aiming to cover a range of different work:
- construction and other outdoor work;
- factories, plants and warehouses;
- labs and research facilities;
- offices and contact centres;
- other people’s homes;
- restaurants offering takeaway or delivery;
- shops and branches; and
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:
- Alert employees that there has been a diagnosis in the workplace and direct them to the NHS website for guidance. Howeber, do not name the infected employee, as that could breach GDPR obligations.
- Public Health England (PHE) will likely be in touch with you to identify who the individual has been in contact with and discuss the workplace set up. 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 encouage 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 whther 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.