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Global HR Lawyers

Business as (un)usual - how to manage a return to business after Covid-19

24 April 2020

The UK’s lockdown has been extended until at least 7 May 2020 and there may then be a further extension. When it is eventually lifted, measures for a gradual and phased return to the workplace are likely to be imposed, with social-distancing measures remaining in place. You need to start thinking now about how to manage this process.

NOTE: There have been further important developments concerning the issues discussed in this article since it was published. For up-to-date guidance, please see our FAQs on managing a safe return to work.

We have already seen other countries start to ease lockdown restrictions. New Zealand is making plans to relax some of its measures and several European countries have already taken such steps. Bookshops and laundries are reopening in parts of Italy and hardware and bicycle stores in the Czech Republic. Meanwhile in Germany, some smaller non-essential stores have been allowed to open, subject to their plans to maintain hygiene and social distancing.

At the same time, there are already cautionary tales. Amazon has appealed a French court’s ruling that it failed to recognise its obligations regarding the security and health of its workers, in respect of physical distancing, hygiene and cleaning of warehouses. Claims in the US and Australia are raising questions of worker compensation if a requirement to be in the workplace leads to contraction of Covid-19.

Bearing all this in mind, it is important for UK businesses to plan how they will manage a return to work when the government begins to ease the lockdown. This article looks at the practical issues to consider. (A separate article deals with exit strategies for when the furlough scheme comes to an end.)

Key health and safety measures

Protecting the health and safety of employees in the workplace must be paramount. Here are some of the main steps you should take:

  • Continue to follow relevant national and global guidance, including from the government, NHS and the World Health Organisation (WHO).
  • Before any return to the workplace, carry out appropriate risk assessments. These should cover risks posed by premises, working conditions (e.g. proximity of workstations) and the composition of the workforce. Advance planning on how to adapt these, taking account of government guidance, will draw out potential issues and help minimise risk. Consider whether you have appropriate insurance in place to cover the risk of claims and whether plans for re-opening should be checked with your insurers.
  • Early and transparent communication with employees on plans will be helpful. Consider providing guidance and establishing protocols on workplace measures you have adopted. Think about the best way for information to be communicated to employees before they return to work (e.g. email, video conference, online training) and afterwards (e.g. notices, intranet, verbal briefings) - and how updates will be provided.
  • If you recognise a trade union, early engagement on the plan with the health and safety committee members should help ensure understanding and provide input on your proposals. Union engagement may also be required where changes to terms and conditions are needed, (e.g. shorter shifts or different hours). More generally, the union (or staff representative body, if you have one) may help communicate guidance to employees and provide a route for them to raise questions or concerns.
  • Consider working hours and travel arrangements – for example, staggering start and end times, which may minimise staff commuting at peak travel hours. Encourage staff to use modes of transport that reduce exposure to others (e.g. walking or cycling, where possible). For staff who have long, unavoidable commutes, consider whether they can continue to work from home (or continue to be furloughed). Another possibility might be to prohibit all non-essential work travel.

Assessing the workplace

Various specific measures can potentially be put in place to minimise the risk of cross-contamination:

  • Entry/exit to the workplace. People entering the workplace are a significant risk - consider what hygiene facilities will be available and how physical distancing can be maintained. Is the building suitable for most to use the stairs instead of the lift? Should there be a one-person-per-lift rule? Where security and safety allow, can doors be left open so there is less touching of handles? Another possibility might be to implement a one-way system of moving around the building. Staggering start and end times may also take pressure off peak entry/exit to building, as may introducing rules minimising exit and re-entry by staff during the day.
  • The general workspace. How can physical distancing effectively be achieved? In an office environment, desks should be at least two metres apart and not face-to-face. This will require an assessment of how it impacts the maximum number of people that the workplace can accommodate – one option might be to divide the workforce into groups and rotate attendance in the office. For retail businesses, possible options include imposing a limit on number of staff working at a till or cash-desk, or entering the stock room – or restricting employees to one area or floor.
  • Toilets and kitchens. Limits should be imposed on the number of people allowed to enter these spaces at the same time, e.g. by staggering lunch times. Consider prohibiting the use of company crockery and cutlery and encouraging employees to bring their own. Should the use of coffee machines, fridges, etc be allowed?
  • Meetings. Consider the risks around time spent in more confined spaces. Do meetings really need to be held in person rather than by video conference? If so, how should the room be arranged? Another possibility is to prohibit travel for non-critical business meetings.
  • Third parties/customers. Assess the risks around third parties entering the workplace, and remember you have an obligation to ensure their health and safety too. In a retail environment, should customers be asked to hand-sanitise on entry? In the office environment, are third-party in-person meetings really needed? Will there be agreed protocols around this (e.g. hygiene requirements, travel suggestions, no hand-shaking)? Consider appropriate protocols for deliveries and collections.
  • Staff facilities (e.g. café, gym). Should these be open or closed? The safest approach is the latter, but outsourced providers may want to get their staff back working as well. Find out whether there are there contractual commitments in outsourced contracts to have facilities running if the building is in use.
  • First aiders/fire marshals. If your building is to reopen, is there a requirement for appropriately trained first-aid and fire marshals to be present? It might be advisable to arrange online training for staff now, to ensure adequate cover and thereby compliance. Does the building or facilities manager always need to be there?

Personal hygiene

Clearly, there may be many different people touching the same equipment, handles, buttons, etc. Can adequate volumes of hand sanitiser for your workplace be sourced? Should disinfectant wipes for keyboards and phones be provided, or should you implement a rule that employees should only use their own keyboard or laptop and phone. Workspaces should be regularly deep cleaned, particularly hard surfaces that are regularly touched.

London mayor Sadiq Khan is currently pushing the government to encourage people to cover-up while out in public and to make face masks compulsory on public transport. Even if current government guidance doesn’t change, you might want to contemplate providing face masks to employees who are required to come into work.

Policies and testing

Now is the time to consider whether amendments to your policies will be necessary to cater for this new situation and issues surrounding testing of employees, whether voluntary or mandatory:

  • Sickness, health and safety, homeworking and disciplinary policies. Will there be a discrete return-to-work policy? Should a new policy on Covid-19/infectious diseases be put in place? Employers will naturally want to encourage employees with Covid-19 like symptoms or a temperature to stay at home, but there are various issues to work through. For example, what if an employer notices an employee has symptoms while they are at work - would they be requested or directed to go home and what implications would this have for pay? What would be the consequences if they refused?
  • Testing. There is likely to be no problem with allowing employees to do their own voluntary and confidential testing (for example, using electronic temperature readings at the entry to the building). If you wish to have more control, for example by introducing mandatory testing, there will be significant data protection and contractual issues to take on board before introducing such a policy.

Assessing who will return and when

You will most likely not initially need all your workforce to return. This may be because the business can function with staff working from home, or perhaps staff will not be not required at the premises, because there is a slow return to normal business. You should think about how many staff (if any) are needed at the workplace, considering the associated risks.

It may be advisable to begin by exploring who would be willing to come back in - if there are enough volunteers, this could be the best option. There would still, however, be various issues to consider in this situation:

  • The more people who enter the workplace, the greater the risk of a new outbreak. If there are more volunteers than required, consider selection from that pool (avoiding bias) – for example, based on their journey to the workplace.
  • If too many employees want to come into work at any given time, you may need to impose a limit on the number of people allowed in the building. Will employees be required to give advance notice of when they intend to come in? If so, who will manage this?
  • Is there a sufficient spread of volunteers to enable the business to function properly – that is, not all in one team, performing limited roles, or at one grade of seniority?
  • Consider implementing a rota for who comes in and when (e.g. a set percentage of the volunteers), which may also assist in maintaining social-distancing guidelines.

You may need to have a mandatory system if there are key people you need or want to be present, or where there are insufficient volunteers:

  • If using a mandatory system, how would you select who is to return? A minimum number of people may be required in each role for your business to operate (e.g. chefs, waiting staff).
  • There may be other selection issues - for example, it’s likely to be prudent to allow employees to stay at home (or kept on furlough) if they are vulnerable, have caring responsibilities, or their commute puts them at particular risk. Remember you have overriding duty to provide a safe place of work
  • Consider how you would select employees to come off furlough, bearing in mind any potential discrimination or procedural/ fairness issues – particularly if there could be consequences for pay or long-term employment prospects.

If you have furloughed staff, and the government scheme is still in place, issues may arise if some employees are working and some are on furlough:

  • If some employees are asked to return and others are not, either group may protest. Where employees on furlough are receiving 100% pay, it may be difficult to incentivise those who are returning to work. This is likely to be easier where furlough is on reduced pay and those who return to work are paid at their full salary.
  • A difficult question is how to deal with situations where an employer needs staff to come off furlough but does not have full-time work for them (e.g. a restaurant is only opening at the weekend). This could mean placing staff at a financial disadvantage by being asked to work.
  • Consider whether rotational furlough could be used, in three-week blocks.

Employees/joiners travelling to the UK

Special consideration will need to be given to employees returning to work or joining the business from overseas. Other countries are at different stages in curtailing the spread of the virus and some have taken a different approach from the UK to tackling its spread. The UK borders currently do not have screening or testing in place and it is unclear whether this will be implemented.

If you are in this position, you will need to assess if those returning from certain countries are higher or lower risk and act accordingly. Those returning from higher-risk countries could, for example, be required to undertake a period of self-isolation before any workplace return.

Then what?

As staff return to the workplace, you should regularly audit the effectiveness of your policies and procedures, and whether they are being adhered to. 

Also keep in mind the WHO’s warning that rushing to lift lockdown measures risks a resurgence of the virus. We have already seen Singapore re-enter an extended period of lockdown. Any relaxation of restrictions will not mean we are out of the woods and a second lockdown is possible. You should therefore be cautious about making long-term commitments to employees and make clear that any return-to-work measures will continue to be reviewed and adapted to evolving government guidance.

See also our new Inbrief guide Covid:19: Establishing a return to work plan – health and safety considerations .

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