Getting employees back to work during COVID-19: What to think about from a legal and practical point of view?

The Government has now set out its conditional plan to help England emerge, albeit cautiously, from the lockdown. Instead of "Stay at Home" we now need to "Stay Alert" and, the message for businesses is that if your employees can't work from home then they should go back to work so long as they can stay "COVID Secure".

While many retail and leisure businesses remain legally required to stay closed, as part of the lockdown exit plans, the Government has set out what it calls a roadmap to ensure that these businesses too will be able to open their doors again by the summer.

This article sets out some of the health, safety and employment obligations and some practical tips which should be at the forefront of employer's minds as they navigate the return to work process and beyond.

For more information on this topic, you can click on the link to listen to our "Getting Back to Work: Safely, Legally, Productively" webinar or read our alert "How can employers discharge their duty to protect the health, safety and welfare of employees who are still working in the workplace?"

The Legals

Health and safety

Even before COVID-19, under UK health and safety law, employers have a duty to ensure - so far as reasonably practicable - that their employees and other people who might be affected by their business, are not exposed to risk to their health, safety or wellbeing from their activities. Breach is a criminal offence by the employer. If found guilty, the employer will face a fine. Employers cannot insure for these fines and it is also not legally possible to contract out of the duty.

The Government's plan to "restart the economy" requires employers to undertake a COVID-19 risk assessment in consultation with their workers (and trade unions as applicable) to establish the measures to put in place. This might mean updating existing risk assessments to deal with the COVID-19 risk or creating entirely new risk assessments. These risk assessments should be shared with the workforce. A downloadable notice is included in the guidance, which employers should display in their workplaces to show their employees, customers and other visitors to their workplace, that they have followed this guidance.

The COVID-19 specific risk assessments should address all of the activities that employees undertake so as to evaluate the risk and decide on precautions that need to be put in place. The risk assessments need to be site specific, task specific and individual specific. How an employer's supply chain is managing the risk and how employees interact with the supply chain may also be relevant and should be considered as part of the risk assessment. The risk assessments need to be kept under review and changed in light of any changes in the activities being undertaken or the understanding of the COVID-19 risk. The control measures arising from the risk assessment should be tailored to sector specific industry guidance and the latest Government guidance.

While it is important to conduct a COVID-19 risk assessment, employers should not forget that the changes which are made to reduce the COVID-19 risk might introduce new risks which will also need to be managed.

What else do employers need to think about?

1. Information and training: employers have a duty to provide information and training to employees. This must be kept up-to-date and reflect changes in the risks. Training should be provided during working hours and employees should not be charged for it. It should take into account specific vulnerabilities of employees. As a reminder, since 6 April 2020 statements of particulars for employees and workers should include details of training provided in any event.
2. RIDDOR reporting: reporting requirements relating to cases of, or deaths from, COVID-19 under RIDDOR apply only to occupational exposure, that is, as a result of a person's work. Health and Safety Executive (HSE) guidance says that a RIDDOR report is only required when: an accident or incident at work has, or could have, led to the release or escape of COVID-19 (this must be reported as a dangerous occurrence); a person at work (a worker) has been diagnosed as having COVID-19 attributed to an occupational exposure to COVID-19 (this must be reported as a case of disease); or a worker dies as a result of occupational exposure to COVID-19 (this must be reported as a work-related death due to exposure to a biological agent).
3. Waiver against injury or death: employers might be tempted to ask employees to sign some sort of waiver against injury or death arising out of COVID-19. Statutory limitations mean that this is unlikely to be effective and an employee's agreement to, or awareness of, a risk in itself is not taken as indicating his or her voluntary acceptance of the risk.
4. Changes to the premises: changes to the premises might need to be made to control other risks which have occurred as a result of the outbreak, for example water system stagnation (which will increase the risk of Legionnaires' disease). HSE has issued guidance in relation to air conditioning. If you use a centralised ventilation system that removes and circulates air to different rooms, it is recommended that you turn off recirculation and use a fresh air supply. They say you do not need to adjust other types of air conditioning systems.

Employment

There are, of course, many employment issues to consider with employees returning to work and a lot of these are directly linked to the issues set out above under Health and Safety. There are new aspects arising out of COVID-19 - not least Furlough, new SSP regulations and annual leave provisions, with pre-COVID-19 employment issues continuing to arise; albeit with a twist.

The impact of getting it wrong is likely to lead to grievances and Employment Tribunal claims which will attract compensation awards (although don't expect any process to be swift given the Employment Tribunal's own difficulties).

As or perhaps, more importantly, when deciding to bring the workforce back it is crucial for employers to consider how they should address the impact on staff morale and employee relations. Employees are likely to be nervous about a return to work. They will have a lot of questions and concerns; not just about themselves but about the risks to their families. They will want to know they, and their families, are safe and will not be at risk either at work or at home.

This is a time where employers really do need to ensure that employees are on board, engaged and able to trust their employers. This means being aware of an individual's personal circumstances, acknowledging their concerns, genuinely considering the issues that are causing concern, working closely with Health and Safety teams and initiating proactive discussions with employees, whether individually or via consultation forums or Trade Unions.

The key legal issues are set out below:

1. Furlough
   1. The Furlough scheme, introduced in March 2020, ended for new entrants on 10 June 2020 (with of course exceptions). This means that if employees cannot return to work, and they haven't already been furloughed, then furlough leave is unlikely to be an option 
2. Health and safety issues
   1. Under the Employment Rights Act 1996 employees are protected from detriment and dismissal where they have a reasonable belief that the workplace poses an imminent and serious threat to their health and safety or those of another. This may include a situation where the employee refuses to return to work because they don't agree with the protective steps taken by their employer, but could possibly extend so far as to include where the employee's concern arises; for example, because they live with a vulnerable person and their commute requires them to use public transport. So, it's not the workplace itself but the means of getting to work that creates an issue.
   2. This means that where an employee does raise genuine and reasonable concerns, then taking any action to force the employee back could land the employer in hot water. It also demonstrates why risk assessments are so vital and should be used in addition to genuinely consulting with employees on an individual basis to explore their concerns.
3. Childcare
   1. With the see-sawing of the 'will they/won't they/should they go back to school' conundrum, childcare will be at the forefront of parents minds. If a child isn't back at school parents are unlikely to be able to arrange childcare cover until there is greater access to childcare or social distancing rules relax to allow others (the ever reliant grandparents included) to help. Putting it simply - employees will not be able to come back to work if they have young children at home who need to be looked after.
   2. Employees have the right to time off in an emergency, albeit it does not have to be paid. At what point does the absence of childcare cease to be an emergency? Similarly, parents with a years' service are entitled to unpaid parental leave if they give 21 days' notice that they would like to take leave, which they might be able to do if they are given sufficient notice of coming back to work.
   3. The unpaid nature of these forms of leave is likely to render them unattractive, so employers may want to consider offering employees the option to take annual leave.
   4. There is also the discrimination angle. Where childcare predominantly falls on women then there are potential indirect sex discrimination issues to consider too.
4. Disability discrimination
   1. Where an employee is particularly vulnerable or has an underlying health condition they may well be more concerned about a return to work. As with anyone with health concerns about returning to work, the Equality Act 2010 will apply. Particularly relevant is the duty to make reasonable adjustments and the right not be subjected to unfavourable treatment for a reason arising out of a disability.
   2. Those who care for people with a disability who are concerned about returning to work may also be protected by the Equality Act 2010 with protection against associative direct discrimination, a form of discrimination that cannot be justified 
5. Can an employer take disciplinary action?
   1. Employers may be tempted to treat a requirement that an employee return to work as a reasonable management instruction. Refusal may lead to disciplinary action although care will need to be taken that the protections outlined above do not apply.
6. Whistleblowing
   1. Employees are likely to raise concerns about potential issues with health and safety. These could amount to a protected disclosure under the Employment Rights Act 1996, with an employee protected from detriment and dismissal. Bear in mind that employees may not be raising difficulties around their own return to work, so this protection is potentially wider than the health and safety protection highlighted above.

Practical tips

Health and safety

As above, generic risk assessments are unlikely to be effective. In order to undertake a COVID-19 risk assessment, employers will need to identify:

1. Who might be harmed?
2. How?
3. In light of the risks, what are the appropriate control measures that need to be put in place, taking into account those controls already in place.

These risk assessments need to be kept under review and management will need to be trained specifically in relation to: (i) how to conduct a COVID-19 risk assessment; (ii) how to implement this on a daily basis; and (iii) the business' policies in relation to infection control and business continuity in light of COVID-19.

In terms of practical health and safety steps, this section of the article focuses on the control measures which might be used to remove or reduce hazards and risks. The idea is to always keep in mind that these control measures should be considered in light of the risks identified in the risk assessments, which should all be situation specific.

1. Eliminate: In order to eliminate the risk, those workers who can work from home should continue to do so in-line with Government guidance.

   Remember that this approach introduces a new risk associated with working from home (including risks of upper limb disorders and risks to mental health). A working from home risk assessment should be conducted.

In circumstances where tasks need to be carried out which cannot be done at home and where the workplace is not legally required to remain closed, employers should think about the following control measures which might assist in ensuring that employees can keep two metres apart.

2. Restructure teams: this might involve scaling back the size of teams present on site and/or staggering working hours of groups of employees in order to reduce the number of workers on site at any one time. Employers might also consider creating "fixed teams" to ensure that it is easier to minimise and trace contact.


3. Coning/barriers: consider using cones (or tape) to cordon off areas in which employees would usually congregate and to mark out walkways which will ensure that social distance can be observed. If necessary, consider temporary barriers in between workstations and/or ensure that workstations are separated where possible. Where it is not appropriate to erect barriers or dismantle work stations which are jointed together, some workstations may be left unoccupied so as to maintain appropriate spacing.


4. Contactless/paperless systems: if working at the premises, employees should be encouraged to use electronic communication and avoid, for example, circulating meeting agendas, policies or anything else in hard copy. This will also help to avoid the need to congregate near a printer or waste paper bin. This might also mean considering a different way of managing how employees "clock in and out" (be this through a literal clocking in machine or through barriers at an office or some other premises) and the use of notice boards to disseminate information. Employers might need to find a way to manage clocking in and out through, for example, a clocking in App or barriers at office entrances may need to be left open at certain times to avoid a bottleneck (although consider security issues).


5. Close some areas of the premises: some more high risk areas of the premises may not be necessary in circumstances where alternatives could be used. Seating areas in canteens and breakrooms, for example, might be cordoned off in favour of encouraging employees to eat outside or, if that is not possible, break times could be staggered.


6. First aid: employers are required to provide adequate personnel to ensure employees receive immediate attention if they are injured at work. This should be kept in mind when considering which employees should be present on site at any one time. First aid policies should be updated and the first aid trained staff should be consulted and kept informed in that respect. The vast majority of incidents will not require the first aider to get close to the casualty such that they could come into contact with cough droplets but, for example, if CPR is required, a change in procedure will be necessary. The St John Ambulance service has issued guidance in this respect.


7. Visitors: restrict the number of visitors who attend at the premises and ensure they only attend if absolutely necessary. If it is necessary for them to attend then they should confirm beforehand that they are not displaying symptoms and that no one in their household is displaying symptoms. Ideally, the number of employees who come into contact with the visitors should be kept to a minimum.

Safe systems of work and other mitigation measures should also be considered, including:

1. Training: creating and maintaining a "COVID Secure" workplace will require a behaviour change from employees and this behaviour change will need to be enforced. Employees may not be used to, for example, washing their hands with soap for 20 seconds or cleaning their work areas on a more than daily basis. Employees should be provided with training on the new infection control policies on their return to work (during work hours). Managers should reinforce these policies and should pull employees up on any breaches. Habits will need to be changed and this will take time and plenty of reinforcement.


2. Signage: signage should be used to reinforce messages about social distancing and, for example, handwashing and should be visible in potentially busy areas and/or in bathrooms and by eating areas. Employers in factories and on building sites might think about adding messaging to the backs of high-vis vests.


3. Higher standards of personal hygiene: frequently clean and disinfect objects and surfaces that are touched regularly. This may well mean that cleaning equipment will need to be provided to employees who will need to clean down their desks, telephones and other equipment regularly after use. High contact areas like door handles and buttons on vending machines will need to be cleaned more regularly. Employees will also need to be reminded to wash their hands regularly throughout the day for at least 20 seconds and, if they sneeze, to "Catch it, Bin it, Kill it". This means that suitable washing facilities and hand sanitiser will need to be provided as well as bins with closed lids.


4. Symptom monitoring/reporting system: this might involve employees reporting to their employer when they are displaying COVID-19 symptoms and the names of other employees or third parties they have come into contact with through work. Employers can then notify those employees and ask them to comply with the latest Government guidance, as well as notifying third parties (if possible) so that they might also take steps to comply with guidance. Employers should encourage workers to heed any notifications to self-isolate issued as part of the NHS test and trace service and should facilitate the employee to self-isolate. If employers want to test employees for symptoms, they will need the consent of the employee. The employment contract is unlikely to cover this consent. Specialist advice on testing should be sought and employers should give consideration to keeping any records in this respect, which might have data protection implications.


5. Emergency evacuation plan: employers should ensure that sufficient numbers of personnel are available in order to carry out the evacuation plan. This should be kept in mind when considering which employees should be present on site at any one time.


6. PPE: PPE can be an effective control measure but only where it is suitable and sufficient to control the risk. For some employees, it may not be necessary in circumstances where they are, for example, working outdoors and/or in small shifts where they are able to maintain social distancing.

Employment

Many of the practical tips on the employment side are linked, and included, in the Health and Safety ones. Training for example.

1. Communication remains key.
   1. Telling staff what is happening, why and how this impacts on them should be top of the employee relations to-do list.
   2. Engaging with staff and seeking feedback is also important to be able to build that feedback into decisions and to demonstrate that the employer is listening to and taking on board that feedback. It can also help challenge your own views and bring new ideas to your planning.
   3. Listen to staff, hear what they are saying and act upon it. This is a crucial means of enabling issues and concerns around health and safety and childcare (and whistleblowing) to be resolved early on and prevent escalation.
2. Prepare to be flexible - in thinking and in actions.
   1. What works for one employee will not necessarily work for others. This is where the risk assessment and speaking to individuals is so important. While one person may be able to cycle to work to avoid public transport, another might not 
3. Identify those most at risk or with the most challenges.
   1. Use the risk assessment, your own knowledge and what people are saying to ensure you can proactively take steps to address issues. Don't wait to be told what they are.
      1. For example, you know you have a single parent with two kids at primary school age? You know you have an employee with chronic asthma who can't drive 
4. As set out in our insight into managing mental health during lockdown, the following are still very much applicable:
   1. Trust your staff. People generally want to work but need to know they, and their families, are safe and cared for.
   2. Lead from the front. Senior Managers should be at the forefront of decisions and communications.
   3. Encourage employees to really think about what would work - and challenge yourself and your own perceptions.
   4. Continue to provide employees with practical tips about relevant issues like how to manage anxiety, how to source masks for commuting and anything else relevant.
   5. Check-in with employees. Once they are back don't stop the communication.

Please do let us know if you would like to discuss any of the issues raised in this ins