COVID-19 – Back to work guidance

Following two months of lockdown, the Government has put in place plans to get the nation back to work.

Below we summarise the guidance to employers on preparing workplaces for staff to return to work.  We also address the use of PPE in the workplace and provide an update on the furlough scheme guidance.

Employers have a duty to protect the health, safety and welfare of their employees and others affected by their business.  They must take all reasonably practicable steps to do this.

So, how should employers prepare for the return to work?

The Government has issued guidance on returning to the workplace.

This includes guidance on the 5 main steps which are:

1. Assess the risks in the workplace – by carrying out a COVID-19 risk assessment in line with HSE guidance, consulting with staff representatives and, where appropriate, trade unions about this and publishing or displaying the risk assessment so that staff can refer to it if they wish. (Note that employers with over 50 staff should publish the risk assessment on their website)
2. Put in place cleaning and hygiene procedures – eg. encourage handwashing, disinfect surfaces etc
3. Help people to work from home – ensuring that they have the right equipment to do so and looking after their physical and mental wellbeing
4. Maintain social distancing where possible – using signs and floor tape etc
5. Manage the risk where social distancing isn’t possible – eg. by changing working arrangements such as start and finish times or stopping non-essential activities.

Employers should also follow the workplace specific guidance issued by the Government.  There are 8 sectors covered and these can be found here

The guidance for office workers suggests the following:

• only allowing those on site who really need to be there
• using screens or barriers to separate people from each other
• avoiding face to face working where possible
• helping homeworkers stay connected with colleagues
• looking after the physical health and mental wellbeing of homeworkers.

This means that working at home for many office workers will continue for the foreseeable future.  For workplaces that do need to bring people back in, it may be a good idea to allow workers to return to the workplace gradually and to have a trial period to ensure that the measures put in place work effectively.

Other than in clinical settings, PPE is considered very unlikely to provide additional protection for workers where other measures such as social distancing and effective cleaning are followed.  The guidance states that, outside clinical settings, employers should not encourage the precautionary use of PPE or face masks.  However, if employers do provide face masks, they should ensure that they fit properly and provide them free of charge.  Employers should also instruct employees on the procedure for using face masks if they provide these.  This guidance can be viewed here.  Statistics suggest that PPE may well be beneficial in preventing COVID spread – many more care workers contract COVID than hospital workers for example.  Employers may be tempted to provide face masks in the workplace.  If they do, they should:

• state that handwashing, disinfecting and social distancing are still critical
• ensure they fit properly
• provide instructions on the guidance for using face masks.

Either way, no employer should prevent an employee from taking extra steps to protect themselves in the workplace by, for example, wearing a face mask.

The guidance distinguishes between those who are “extremely vulnerable” and those who are “vulnerable”. “Extremely vulnerable” people are those who have received a letter requiring them to self-isolate or who have been told by their GP that they must self-isolate.   These employees must not work outside the home and must not attend the workplace.

“Vulnerable” workers, such as anyone who suffers from mild to moderate asthma, diabetes, obesity and pregnant women, may go to work but every effort should be made to ensure that they can work from home if at all possible, even if this means them carrying out a different role.  If this is not possible and a vulnerable worker needs to be on site, they must be able to socially distance effectively in the workplace.  The guidance suggests that those who live with extremely vulnerable people should be treated as vulnerable workers.

Advice remains that those with COVID symptoms should self-isolate for at least 7 days and that those who live with anyone who has COVID symptoms should self-isolate for 14 days.

You may want to test employees, for example by taking their temperature before they enter the workplace, to satisfy yourself that they are less likely to be infectious.

It is worth noting that workplace testing is not recommended by the current Government guidance and neither is it endorsed by the World Health Organisation or Acas.  However, that is not to say that it wouldn’t be right to implement workplace testing under any circumstances.  I have collaborated with Information Law expert, Kate Grimley Evans, in an article on the steps required for workplace testing which is available here.

The short answer to this question is yes, there is a previously fairly little used law which protects employees who refuse to work because they are concerned about infection, either in the workplace or because they have to use public transport to travel to and from work.

An employee who is refusing to work on this basis will undoubtedly be protected from dismissal or detriment if their employer has not fully complied with Government guidance.  Even if the employer has complied with the guidance, this is not the end of the story – an employee can refuse to attend work if they have a reasonable fear of catching COVID-19.  Whether an employer can claim that the employee’s fear is unreasonable will depend on a number of factors.  It is therefore possible that a 62 year old BAME male employee could reasonably refuse to attend work, whilst a white 22 year old female may not.  Employers should consider what is reasonable from the employee’s point of view and, above all, talk to their staff to instil confidence and to keep them on board.

Whilst sanctioning an employee who refuses to come to work because of safety concerns could result in a tribunal claim, employers will want to know whether they can refuse to pay employees who stay away.  Employers will be safer withholding pay if they do so because of the employee’s absence rather than because of the employee’s refusal to work.  This may seem like a trivial distinction, but it could be important in defending a tribunal claim.

The Coronavirus Job Retention Scheme has now been extended until the end of October, although its scope will be reduced from August onwards.  Details of the proposed changes to the scheme are yet to be announced.  Employers should ensure that they have furlough agreements in place with staff for future reference.

The Government has now published guidance on this point and it is clear from this that employers can require employees to take holiday whilst they are furloughed.  There are two requirements: notice of double the length of the holiday (although shorter notice can be agreed) and a belief that the lockdown restrictions are unlikely to prevent a worker from being able to rest and enjoy their holiday.

Holiday pay should be paid at 100% of salary rather than at the furlough rate.

Furloughed employees can be asked to attend redundancy consultation meetings and can be made redundant whilst furloughed.  Care should be taken when navigating the redundancy process to avoid successful unfair dismissal claims in future.  In the current situation it is also quite possible that SMEs may need to consider 20 or more redundancies within a 90 day period which would trigger the more complex collective consultation requirements.  Advice should be sought if this is a possibility.

An employee’s contractual notice period can be worked during furlough leave which would allow the employer to benefit from government assistance during the notice period – although, in most cases, employers are likely to need to top up salary to 100% when paying notice.

Moving on from what we have covered above, the key takeaway messages for employers are:

• pay close attention to the guidance
• communicate effectively and often with your staff
• explain what you are doing and why
• consider all the facts very carefully and, if necessary, take advice before making decisions.

It is easy when working remotely to lose touch with the feelings and views circulating amongst staff and a lot of effort will need to be made to bridge the gap to avoid a silo mentality developing.

The above will answer many questions but there will still be outstanding points and concerns, so please feel free to contact us at Harmony HR Solutions if you need further assistance.