How can employers discharge their duty to protect the health, safety and welfare of employees who are still working in the workplace?

COVID-19 is a new risk. Our understanding of it and of the measures that need to be taken to manage it are evolving all the time, as is the guidance issued by the Government and public health bodies.

Regulations 4, 5 and Schedule 2 of the new Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 brought into effect on 26 March 2020 codified the rules around which businesses had to close and those that could remain open.

Employers must now grapple with protecting both their employees working from home, and, if premises remain open, those employees who are still working in their usual workplace.

In this article, we consider some of the practical steps employers should be taking to ensure that they discharge their duties to employees who are still working in the workplace.

If you are interested in understanding what steps employers should be taking to discharge their duties towards employees who are working from home, we have provided some practical tips in the article titled "How can employers should be taking to discharge their duty to protect the health, safety and welfare of employees who are working from home?"

The Legals

The key duties which employers have under health and safety law are:

1. To ensure, so far as reasonably practicable, that their employees and other people who might be affected by their business, are not exposed to risks to their health, safety and welfare. In practice, this requires employers to make sure, so far as is reasonably practicable, that their employees and others who are affected by their business are protected from anything that may cause harm. This duty extends to protecting both the physical and mental health of the employee.

2. To assess and keep under review risks arising from what the business does. Risk assessments should be carried out that identify all risks that might cause harm and then set out reasonably practicable methods to eliminate them and, if that is not possible, reduce them.

How can employers discharge their duties when employees cannot work from home?

Risk means the possibility of danger. COVID-19 affects every aspect of the work environment and the particular risk it poses needs to be considered on a task by task, job by job and individual by individual basis. If working practices have to change to deal with the COVID-19 risk, then it is also essential that any consequential risks are also considered and dealt with.

On Friday 3 April, the HSE, TUC and CBI issued a joint statement warning that the HSE will take action, including issuing enforcement notices, to employers who are not complying with the Public Health Guidance.

Here are some of the questions which we recommend are taken into account:

1. What instructions have been given to workers about how to decide if they are well enough to come to work?

While the extent to which those with COVID-19, but without symptoms can spread the disease is unclear, we know that those with symptoms do spread it. Workers need to understand and follow the latest guidance on when to self-isolate.

We have seen examples of temperature testing as workers enter site. This might have employment consequences. The effectiveness of doing this and the risk to the person carrying out the testing needs to be fully understood.

2. How are workers getting to the place of work?

Strictly speaking this is not something which an employer needs to worry about, but encouraging workers to think about how they might get to and from work safely will benefit the worker, the business and of course society as a whole.

3. How are workers starting and leaving work?

Can workers get to their place of work without coming into close contact with others? Is there a pinch point at a clocking on or registration? Could start and finishing times be staggered? Can distancing be maintained in changing rooms?

4. What about rest rooms and welfare facilities?

It is more difficult to maintain safe conditions in these areas. Workers will remove their PPE and will want to sit close to each other. Can break times be staggered?

5. Can working conditions be adapted?

It may be that normal working conditions mean that workers are more than 2 metres apart in any event. However, if not, could normal practice be changed so that that is the case? If not, could the area in question be adapted to introduce screens between people?

Would more extensive and deeper cleaning regimes help?

It may be that a number of workers have been furloughed. Fewer people may have an effect on safe operation and employee mental wellbeing. This needs to be considered. Do remaining employees need training and support? Do you need to review your first aid cover and first aider training?

6. What about PPE?

PPE can be an effective control measure but it needs to be suitable and sufficient. It may also need to be correctly fitted and consistently worn. There may also be issues around supplies and so you may need to prioritise.

Wearing inadequate PPE can also make people think they are protected when they are not. They need to understand this.

7. What about other measures?

Government guidelines for example about hand washing, hand sanitizing, face touching and disposal of waste including single-use PPE should be emphasised, encouraged and enforced. Personal hygiene products should be provided.

Everyone should be aware of the symptoms and what to do if they develop these or spot someone else with them.

8. Should individuals be assessed?

Yes. Anyone with an underlying health condition is at greater risk. There are also reports that older people are more vulnerable and even that men are more vulnerable. Risk assessments should take these factors into account. The risk in employment law terms is unintended discrimination - if you decide that all people over 60 or all men (as examples) should be excluded from the workplace you have to be able to justify your rationale. What evidence did you have and did your approach justify your aims?

9. What if the measures introduced increase risk elsewhere?

Those consequential risks also need to be assessed and managed.

10. How can we enforce the changes?

This may well be the biggest challenge. It takes time to embed different working practices and ensure that they are followed consistently. It will be done most effectively when everyone understands the risk, and the reasons for the changes and then remind each other about how work must be carried out. If, despite everything, new working practices do not work or cannot be followed, then they should be changed or they need to be enforced by using disciplinary action as a means of underlining the seriousness of the issue.

11. What happens next?

Our understanding of the COVID-19 risk continues to evolve. In the coming weeks, government guidance will change, restrictions will either be tightened or relaxed, testing will increase, and we will know more about immunity. You will learn more about how to operate in the new environment.

Risk assessments and safe systems of work need to be reviewed regularly as a result.

If, after you have taken all of these questions into account, the risk cannot be adequately managed, you might have to consider mothballing the site or stripping the business back to run with only skeleton staff in key parts of the business.

Do contact us if you want to discuss any of the issues raised in this alert.