The government’s announcement that the remaining legal COVID-19 restrictions in England will be removed on 19 July, with the restrictions in the devolved nations also likely to be eased or removed in early August, may be welcome news to many, however, COVID-19 is likely to continue to present challenges to businesses for many months to come.
As all businesses in England are allowed to open up and the instruction to ‘work from home if you can’ is removed, employers can plan a return to workplaces. To help manage the return to work, the government has published new guidance for businesses on working safely during COVID-19. The non-statutory workplace guides should be taken into account by employers when complying with existing health and safety obligations. There are a number of guides covering a range of different types of work and the government expects employers to use the relevant guide for businesses’ operations after 19 July, together with additional advice in areas where the new COVID-19 variant is spreading rapidly. As the situation can change frequently and the guides are updated on a regular basis, you should make sure you are familiar with the latest guides for all your working environments and expect to update your approach on a regular basis in line with government guidance. You can read the guidance for different workplace settings using this link: Guidance on working safely during Coronavirus.
Although the guidance for each type of working environment is different, we set out below some general points for employers to consider:
Who should return to the workplace?
Although the instruction to ‘work from home if you can’ will no longer apply from 19 July, whilst there is a high prevalence of COVID-19 the government expects and recommends a gradual return to the workplace over the summer and for employers to discuss the timing and phasing of a return with their workforce. The guides recommend that employers consult with workers, trade unions and employee representatives on an ongoing basis about any health and safety measures you have put in place to reduce the risk of COVID-19 spreading and any changes you propose to working practices (for example, hybrid working). The guides also advise that extra consideration is given to people at higher risk and to workers facing mental and physical health difficulties. As those who are clinically extremely vulnerable are no longer advised to shield and some workers will not yet have been offered two vaccine doses, they may be anxious about returning. New guidance for the clinically extremely vulnerable for step 4 has now been published. In addition, employers are reminded of the discrimination risks in respect of employees whose protected characteristics might expose them to a different degree of risk from the virus and / or face challenges in respect of the steps you are proposing. Employers also have particular legal responsibilities to disabled workers and workers who are new mothers or pregnant. You should continue to support these workers by discussing with them their individual needs and support them in taking any additional precautions.
How do you prepare for a return?
As an employer, you are under a duty to take reasonable steps to ensure the safety of your workforce. The duty to ensure your workers’ safety includes providing a safe place for staff to work and so you need to take steps to assess and reduce the risk to your workforce of contracting COVID-19 on an on-going basis. Risk assessments should include the risk of COVID-19 and actions identified to mitigate the risk will need to be updated and kept under review. The results of risk assessments should be shared with your workforce and the government expects all employers with over 50 workers to publish the results on their website. Employers are also advised to have an up to date COVID-19 outbreak plan and a single point of contact to take the lead on contacting local Public Health teams. In addition, you should make sure any visitors to your building understand the precautionary measures you expect them to take.
What measures are expected to reduce the risk in the workplace?
The guides detail ways to reduce the risk of transmission of the virus, including:
- providing adequate ventilation to improve the flow of fresh air and minimising the use of poorly ventilated areas;
- identifying any areas of congestion and considering if any reasonable steps could be taken to avoid this;
- reducing the number of people your workers will come into contact with, if possible. As the rules on social distancing will no longer apply, there will be no requirement to implement social distancing in the workplace, however, consider layouts and if possible ensure that each person only comes into contact with a few others;
- encouraging the use of face coverings by workers or customers in enclosed and crowded spaces;
- ensuring surfaces that are touched regularly are cleaned frequently, and encouraging staff and customers to use hand sanitiser and to clean their hands frequently.
What about travel to work?
Whilst an employer is not usually responsible for the commute to work, some workers may still have concerns about their commute and using public transport. It is worth bearing in mind that throughout the pandemic public transport has always been available and therefore deemed by the government as safe to use. It is, however, advisable to listen to individual concerns and if it is possible, you could adjust a worker’s start and finish times so they can avoid being on public transport at peak times until they feel more comfortable in their commute. Those designated clinically vulnerable or workers with disabilities which might be relevant should be treated with particular care as alleviating difficulties with the commute may constitute a reasonable adjustment. Consider what other arrangements you could put in place. The guides also suggest that employers should encourage people travelling together in one vehicle to, wherever possible, use fixed travel partners, not to sit face-to-face, and to open windows. Employers are also advised to clean shared vehicles between shifts or on handover.
Are employers required to test workers?
The government has been encouraging employers to sign up to the testing programme which allows employers to regularly test workers who cannot work from home and need to attend the workplace, even if they do not display symptoms of COVID-19. It is not compulsory for employers to implement a workplace testing scheme, but many employers will wish to do so to encourage staff to return to work. The government guides suggest that regular testing could help identify more positive cases of COVID-19 in the workplace in workers who are showing no symptoms. Anecdotally employers who offer testing on a voluntary basis are reporting that it has been received positively by employees. However, requiring workers to take a test is not without its challenges. For more information on testing at work please see our guidance.
What about NHS Test and Trace?
Employers should ensure anyone with COVID-19 symptoms or self-isolating does not come to work. It is illegal to knowingly require or encourage someone who is being required to self-isolate to come to work. The Test and Trace scheme, which employers are encouraged to support, is aimed at reducing the spread of COVID-19 by asking those who have tested positive to identify those with whom they have been in close contact so that those people can then been traced and asked to self-isolate. Any workers who have been informed by NHS Test and Trace that they are a close contact of a person who has had a positive test result for COVID-19 should also follow the requirement to self-isolate. Businesses can continue to collect contact details or allow people to check in to your premises using the QR code in order to support NHS Test and Trace, although this will no longer be a legal requirement.
What are the practical issues and steps for employers to take?
There are many practical issues to consider when planning a return to the workplace. Some points to consider include:
- Get to grips with the latest guides for all your working environments.
- Review and update COVID-19 health and safety risk assessments – including considering how to support your workers who are more vulnerable to the risks of COVID-19.
- Put into place an up to date COVID-19 outbreak plan – including identifying a single point of contact to take the lead on contacting local Public Health teams.
- Consult and communicate clearly with your workforce – consulting with workers, employees, trade unions and/or employee representatives about your plans and providing clear information on the safety measures you are putting into place may help workers become less anxious about a return to the workplace. Be prepared for individuals to have concerns and make sure workers are signposted to sources of further information and support, both internal and external. Make sure that external communications align with the internal messaging and that all messaging aligns with government guidance.
- Maintain safety measures that are already in place – consider what additional COVID-secure measures you will put into place for the time being. Employers may want to remind their workforce to continue to abide by these measures and not to relax their efforts.
- Review and update any protocols for returning to site – consider capacity constraints which may apply during the transitional period as the number of workers returning increases and how attendance requests will be managed.
- Consider your approach to third parties – identify what approach you will take to visitors to your premises – will you require them to provide evidence that they have tested negative before allowing them to enter your premises? Make sure your approach to visitors does not undermine your approach for workers.
- Facilitate employees being tested – consider what steps you wish to take to facilitate workplace testing and how those who test positive, or are asked to self-isolate, will be supported. Consider what level of pay self-isolating workers will receive and the impact on trigger points under sickness policies.
- Consider how medical records will be managed – there will likely be changes to the medical information an employer will hold about its workers and therefore data protection policies and processes should be reviewed to ensure that they are fit for purpose.
- Keep up-to-date on developments – the situation will continue to evolve over the course of the next few months. Employers will need to be prepared to adapt their plans and approach in line with new developments.
If you have any questions about how these developments (or any other COVID-19 measures) will affect your business, please contact Katie Russell or anyone in the Burges Salmon Employment team, who would be happy to advise you.
This guidance notes gives general information only and is not intended to be an exhaustive statement of the law. Although we have taken care over the information, you should not rely on it as legal advice. We do not accept any liability to anyone who does rely on its content.