Coronavirus – FAQs on managing a safe return to work
23 July 2021
Employers are facing many employment law issues as the guidance on working safely during the Covid-19 pandemic continues to evolve. These FAQs cover employers’ health and safety obligations, including risk assessments, risk control measures and responsibilities towards employees who are advised to self-isolate.
See also our FAQs on staffing decisions when reopening workplaces which cover what happens if employees do not want to come to work. Our Workplace testing – FAQs for employers explain what to take on board before rolling out a workplace testing programme. In addition, our Coronavirus vaccination - FAQs for employers consider whether an employer can make vaccinations compulsory, alternatives to a mandatory requirement, dealing with vaccine objectors and data privacy concerns. Our FAQs on furloughing employees deal with all aspects of the government’s Coronavirus Job Retention Scheme.
The latest position is as follows:
- On 19 July, following an increase in the number of ‘pings’ sent by the NHS Covid-19 app causing significant numbers of employees to isolate, the government announced a new short-term exception from self-isolation for government identified, fully vaccinated, critical workers. This scheme will run until 16 August when the requirement to self-isolate following close contact with a positive case is removed for all fully vaccinated adults and those aged under 18.
- On 22 February, the Prime Minister announced a new four step plan to ease England’s lockdown (with Devolved Administrations setting out separate plans for Scotland, Wales and Northern Ireland). This COVID-19 Response, the government’s “roadmap out of lockdown”, saw restrictions start to lift against a series of indicative dates,
- On 19 July, England moved to step 4 of the roadmap. All legal restrictions relating to social distancing and the wearing of masks in England have been lifted and the government is no longer instructing people to work from home. Although employers can therefore start to plan for a return to workplaces, during this period of high prevalence, the government recommends a gradual return over the summer.
- On 19 July, the existing 14 guides to working safely during coronavirus were replaced by 6 new sector-specific guides.Because businesses still have a legal duty to manage risks to those affected by their business, businesses should use this guidance to consider risk and decide what mitigations are appropriate.
Can we ask employees to turn the NHS Covid-19 app off whilst they’re at work?
The NHS Covid-19 contact tracing app was released in England and Wales on 24 September 2020 as part of the government’s NHS Test and Trace service. The app alerts users if they have been in contact with someone who later tests positive for Covid-19 (and who has chosen to alert users) and then gives them advice (e.g. “self-isolate”). The app also allows people to report symptoms, order a test and check in to venues by scanning a QR code.
Employers can, in some circumstances, legitimately ask employees to switch off the app whilst at work, depending on the employer’s unique risk assessment and what other safety measures are in place. Employers considering this step should take advice. Guidance on usage of the app says that it should be switched off in certain circumstances, such as when employees are working behind a fixed screen and are fully protected from other people. The NHS- produced FAQs on how and when contact tracing should be paused can be found here.
If an employee has been “pinged” by the app, do they need to self-isolate?
Legally, no. The legal requirement to self-isolate only applies where an individual has been directly contacted by NHS Test and Trace. When an individual receives a “ping” or notification from the NHS Covid-19 app, the instruction to self-isolate for 10 days is advisory only.
However, employers should be very cautious about asking individuals who are self-isolating following an app notification to attend work relying on the fact that there is no legal requirement. Employers have a duty of care towards all employees and also have legal health and safety responsibilities (see ‘Health and Safety at Work’ below)
The government has announced that it is ‘crucial’ for those notified by the app to isolate. Workers may become fearful if working alongside colleagues who should be following government advice and isolating. This may be particularly true for workers who are vulnerable (or who live with those who are).
Employers facing staffing shortages as a result of the so-called “pingdemic” may wish to make staff aware of a Public Health England study called the Daily Contact Testing Study. On signing up, individuals are put into one of two groups. Whilst one group has to take a PCR test and self-isolate for ten days, the other group is allowed to attend work and other essential activities provided they take a PCR test and then daily lateral flow tests. There is a 50% chance of being allocated to either group.
It is worth remembering that the requirement to self-isolate following close contact with a positive Covid case will be lifted for all fully vaccinated individuals from 16 August so the “pingdemic” may be relatively short-lived, depending on the age profile of your workforce and their uptake of the vaccination.
What can we do to reduce the likelihood of our workforce being “pinged” at work?
Social distancing requirements have been scrapped in favour of a mix of other measures such as ensuring good ventilation, limiting the number of face-to-face contacts and sanitising/cleaning. Employers are not therefore required to maintain a 2m (or 1m with mitigation) distance between staff members.. If employers are concerned about large numbers of staff self-isolating, however, they may want to continue abiding by the pre 19 July guidance in maintaining social distance where this is possible. The app works via the use of Bluetooth by determining if another phone has been in close proximity for more than 15 minutes. Employers should also consider if their specific control measures justify asking employees to turn off the app (see above).
Can we use the new critical worker scheme so our fully vaccinated employees no longer need to self-isolate?
On 19 July 2021, the government announced that some fully vaccinated ‘critical workers’ self-isolating as a result of being identified as a close contact of an individual testing positive, may, in exceptional circumstances, continue to attend work. It is important to note that this exception is not the same that was used last year to allow ‘key’ workers to attend work and their children to attend school.
The individual will need to take a PCR test immediately and then daily lateral flow tests. A positive result will mean immediate self-isolation. The exception is only for work purposes and the individual will need to self-isolate at all other times.The government press release states that workplaces using the scheme will need to ensure that social distancing is maintained and face coverings worn at all times.
The scheme is intended to run until 16 August when fully vaccinated close contacts will be exempt from self-isolation. It has very limited application to workers in critical areas of national infrastructure whose absence would have a major impact on essential services, national security, national defence or the functioning of the state. There are 16 sectors listed as critical and covered by the scheme, although employers outside these sectors can also make an application if they think they meet the criteria. The employer must make a specific application to the relevant government department each time it wants to obtain an exemption, explaining which employees it wishes to exempt, what roles they do and the impact of those employees having to self-isolate. If the application succeeds, the employer will receive a letter naming the individuals who are exempt and the measures they need to take. More details can be found in the government guidance on test and trace.
How are the rules on self-isolating changing after 16 August?
From 16 August, fully vaccinated individuals (and those aged under 18) will no longer need to self-isolate if they have been in close contact with an individual who has tested positive for Covid. Instead, contacts will be advised to take a PCR test. The NHS Covid-19 app will also be updated to reflect this policy change.
What are our obligations with regard to test and trace?
The NHS Test and Trace service helps trace close recent contacts of anyone who tests positive for Covid-19 and, if necessary, notifies them that they must self-isolate at home to stop the spread of the virus. Government guidance states that employers should support workers who are told to self-isolate and must not ask them to attend work. In England, it is an offence for an employer to knowingly allow staff (including agency workers), who are required to self-isolate, to attend their workplace or any other place in connection with their job. There is no restriction on requiring staff in these circumstances to work from home. Employers in breach of this provision can be fined based on a sliding scale, starting at £1,000 (increasing for repeat offences). There is also a legal requirement for both employees and agency workers to notify their employer that they are required to self-isolate, and for how long.
It is no longer a legal requirement for venues to display an NHS QR code or request that customers, visitors and staff “check in” but this is still encouraged in hospitality and certain other settings. The guidance on test and trace says that venues should keep a record of all staff working on the premises, their shift times and dates and their contact details. These records should be kept for 21 days and provided to NHS Test and Trace on request.
Does using a contact tracing app make it more likely that an employee can claim that they contracted Covid-19 at work?
No because the app will not collect names or other personal information including specific location data, only the first part of an individual’s postcode. So, in the unlikely event that an application was made to the NHS to disclose the contact data, it would be very unlikely to show that someone was infected at work.
Can we make employees download the NHS Covid-19 contact tracing app?
It is likely to be lawful to require employees to tell you if they’ve received an alert from the app but as use of the app is voluntary it is more problematic to require use of the app in the first place.
If you provide a device to an employee then, in our view, you can require them to download the contact tracing app. Requiring employees to download the app onto their personal device is trickier, and it is important to bear in mind that not everybody has a smartphone, although you may already have Bring Your Own Device or other policies that could be relied on here and indeed it might be possible to rely on employees’ health and safety obligations to other colleagues to mandate the downloading of the app.
Health and safety at work
If our workplace is open, what steps must we take to manage the risks of Covid-19?
All employers have statutory duties to provide a safe place of work and general legal duties of care towards anyone who may be accessing or using their place of business. To discharge these duties, you must take the following steps:
- Carry out suitable and sufficient risk assessments to identify the risks. Risk assessments should also look at different groups of workers (e.g. pregnant workers), for whom you may need to take extra health and safety measures.
- Implement measures to minimise those risks. You must take all reasonably practicable steps to minimise the risks. This is not the same as having to eliminate the risks altogether.
The Health and Safety Executive has published guidance on what to include in your Covid-19 risk assessment, although the template risk assessment has not been updated to reflect step 4.
To clarify what you need to do, you should refer to the relevant sector-specific guide contained in the government’s new guidance on working safely during coronavirus. The guidance is not the law but is nonetheless likely to be taken as the minimum you need to do to be compliant with the law. It must be read in conjunction with other health and safety laws and regulations, and any advice produced specifically for your sector by industry bodies.
Most businesses are likely to start with their existing risk assessment and review what has changed. This could include the impact of vaccinations and the lifting of legal restrictions from 19 July. We explore what the latest guidance means for risk assessments in more detail in our article End of lockdown restrictions – what does the new workplace safety guidance say?
Must we publish our risk assessment?
The law already says that significant findings from risk assessments must be written down if you have more than five staff. The guidance continues to recommend that you publish your Covid-19 risk assessment on your website, and that all employers with over 50 workers will be expected to do so.
Do we need to do a risk assessment even if everyone is working from home?
Yes, but it should concentrate on the homeworking risks. You can update it (after consultation) in due course to reflect your plans for re-opening.
How do we go about doing a satisfactory risk assessment?
Alongside general guidance on how to do a risk assessment, the Health and Safety Executive (HSE) has also produced guidance on how to do a risk assessment during the coronavirus (COVID-19) pandemic which should be taken together with the appropriate workplace guidance for your particular environment. In summary, the HSE recommends taking the following five steps:
- Identify what work activity or situation might cause transmission of Covid-19.
- Think about who could be at risk – this could include workers, visitors, contractors or delivery drivers.
- Decide how likely it is that someone might be exposed.
- Identify controls needed to reduce the risk.
What responsibilities do our employees have for their safety?
Employees have independent statutory duties to take reasonable care for their own health and safety, and that of other persons, and to co-operate with you to ensure that your rules are complied with. It is therefore important for you to educate and train your staff on the practices and policies you have decided to adopt.
Do we need to do any more than the government guidance as regards our staff?
Yes, potentially. Previous restrictions on social distancing, working from home and reduced occupancy have been replaced by six priority activities:
1. Complete a health and safety risk assessment that includes the risk from Covid-19.
2. Provide adequate ventilation.
3. Clean more often.
4. Turn away people with Covide-19 symptoms.
5. Enable people to check in at your venue.
6. Communicate and train.
The new guidance sets out the main ways in which Covid-19 is spread through close contact with an infected person (via droplets and aerosol particles being breathed in by another person or by touching infected surfaces or belongings) and highlights steps to consider to reduce the risk of the virus spreading.
You need to assess the risks presented by your own workplace to your own employees, as well as contractors and visitors, and you may need to put in place additional controls or measures to mitigate them. The guidance is not the same as the law so your legal duties will continue alongside, and in addition to, the guidance.
We explore what measures you may wish to take in our article End of lockdown restrictions – what does the new workplace safety guidance say? We’ve also produced a table of the practical steps that employers can consider taking to mitigate the various legal risks arising from employees coming to work during the pandemic.
Should we consult employees or their representatives about our workplace safety plans?
Yes. Government guidance emphasises that employers have a duty to consult their people on health and safety and recommends that employers develop communication and training materials for workers prior to returning to site. In addition, the guidance summarises your statutory responsibilities to consult safety representatives.
If you recognise a trade union, you should consult with your union safety representatives. Where workers are not already represented by union safety representatives, you have a statutory requirement to consult either employees or their elected representatives about health and safety - in particular, the introduction of new measures that could substantially affect their health and safety. The HSE has produced guidance about this here and here. It is a criminal offence not to comply, albeit not the type of offence that the HSE has actively prosecuted in the past. Employees do not themselves have any kind of civil remedy for failing to be consulted over health and safety matters (although they can bring claims about training – see below).
The first step is to check your health and safety policy to see if it says how you will engage with employees. Depending on any existing commitments in your policy, you may want to organise a body of employee representatives for this and other purposes - see our insight article on whether employers should set up a standing body for collective consultation. There is no set process for conducting elections and you might simply start by asking for volunteers.
You need to pay for any employee representatives to have such training as is reasonable in the circumstances. It is not clear that any training would be required for the purposes of consulting over the current situation, or indeed if any is available.
Consulting representatives can be easier and more effective than trying to consult employees directly, especially when consultation needs to happen remotely, and you could consider putting in place a representative body. If you do not want to set up a representative body, or you are concerned about the time it might take to do so, you can consult employees directly. To do this effectively without being able to hold physical meetings, you would need to consider open “town hall” meetings using apps such as Zoom, or other online employee survey tools.
Consulting employees not only mitigates your legal risk but is also likely to flush out issues and prevent problems when it comes to putting your plans into practice.
Employees on the furlough scheme must not do any work during the hours you record them on furlough (although they can carry out training). The HMRC furlough guidance states that HMRC will not regard the duties and activities of employee representatives as “work”, as long as the representatives do not provide services to or generate revenue for or on behalf of your organisation or a linked or associated organisation. There is an argument that acting as a health and safety representative is more likely to be considered work than acting as a representative for collective redundancies, although the HMRC guidance does not draw this distinction.
What if we are accused of breaching the government workplace safety guidance?
You could face a claim from an employee or third party (such as a visitor or contractor) who claims to have suffered injury as a result. This might be a claim that the employee has contracted Covid-19, but it could also be a claim that they have suffered some other kind of injury such as stress-related illness. Employees might also refuse to come to work (see below).
In serious cases, you could face a criminal prosecution for breaching health and safety legislation by failing to take reasonably practicable steps to ensure employee safety. Directors, managers and officers can also be found guilty of any offence which was committed with their consent or connivance, or which is attributable to their neglect. Responsibility for prosecuting offences falls to the HSE or relevant local authority. They will generally not look to launch a criminal prosecution unless there is clear evidence that the health and safety breach caused serious harm and that there are public policy reasons to prosecute. The latest guidance explains that inspectors are carrying out compliance checks nationwide to ensure that employers are taking the necessary steps and explains how employees can get in touch with HSE to raise concerns. It also says that, from Step 4, local authorities will continue to have the power to place public health restrictions on businesses in cases where a serious and imminent threat to public health is identified.
Can we be liable if an employee contracts Covid-19 at work?
Yes, potentially, but only if the employee can show both of the following:
- You, as the employer, were negligent in some way, or one of your employees acted negligently in the course of their employment so that you are found vicariously liable.
- The negligence caused or materially contributed to the claimant contracting Covid-19.
An employee with mild symptoms is unlikely to bring a claim. In practice, claims are most likely to come from vulnerable employees whose symptoms may be more severe.
In most cases, it will be difficult in practice for employees to establish on the balance of probabilities that exposure at work was the cause of them contracting the virus. They could have picked up the virus anywhere. Even if an employee does contract Covid-19 at work, you will not be liable unless they can also show that this was the result of negligence, i.e. a breach of your duty of care or statutory responsibilities.
So, to ensure that you are in the best possible position to defend a negligence claim, regulator investigation or criminal prosecution, you need to make sure that you – and your workforce - are complying with the government guidance and taking any additional precautions required. This includes monitoring how employees are behaving towards each other and intervening quickly if they are not acting appropriately. It’s not enough to put in place systems if employees are not complying with them.
Do we need to make a RIDDOR report if an employee contracts Covid?
Covid-19 is now a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR). However, the HSE has confirmed that employers should only make a report under RIDDOR when one of the following circumstances applies:
- An accident or incident at work has, or could have, led to the release or escape of coronavirus (SARS-CoV-2). This must be reported as a dangerous occurrence.
- A worker has been diagnosed as having Covid-19 attributed to an occupational exposure to coronavirus. This must be reported as a case of disease.
- A worker dies as a result of occupational exposure to coronavirus. This must be reported as a work-related death due to exposure to a biological agent.
The reporting requirements apply only to cases of “occupational exposure”, that is, as a result of a person’s work. This seems to cover employees such as laboratory technicians, nurses, other health care workers and those involved with testing etc and has limited application to the UK workforce.
What about insurance?
You should already have Employers Liability Insurance in place to cover the risk of claims from employees about injuries or illnesses suffered in the course of employment. Your public liability insurance should cover claims from visitors or customers etc. You should check the scope of your cover, and whether you have any specialist health and safety insurance in place, including claims against directors. Remember to keep your insurers up to date if any claims are threatened.
What processes do we need for employees to flag concerns about potentially unsafe practices at work?
You might consider setting up a special process for employees to flag concerns that your health and safety measures are not working or are not being observed.
An alternative is to use existing whistleblowing hotlines. A complaint that “the health and safety of any individual has been, is being or is likely to be endangered” counts as a protected disclosure for the purposes of whistleblowing legislation and you may already encourage concerns on this issue to be raised through whistleblowing or “speak up” policies.
Whichever process you use, make sure that:
- Someone is given responsibility for investigating the concerns.
- There is a defined escalation process.
- Managers are clear about the process for dealing with concerns and can signpost it to employees.
- You take any steps required to address legitimate concerns, e.g. by adjusting your health and safety approach or disciplining individuals who have behaved irresponsibly.
- Nobody takes retaliatory action against any employee who complains. Employees may be protected as a whistleblower, even if they did not use the whistleblowing policy. In one recent Employment Tribunal (ET) decision, the ET was not satisfied that an employee raising safety concerns was a whistleblower because he was only concerned about his father’s health and this did not meet the public interest test. The ET thought that the point was arguable, however, so it could be decided differently in other cases.
- You comply with applicable data and privacy requirements.
What policies should we have in place?
You will need to revisit and probably expand your existing health and safety policy to cover your approach to controlling the risks presented by Covid-19. You’ll also need a process for handling employee complaints and concerns about health and safety (see above).
Think about whether your existing homeworking, whistleblowing and disciplinary policies also need any amendments to ensure consistency with your new policies.
What Personal Protective Equipment (PPE) should we provide?
You must first assess the risk and see if it can be eliminated entirely. If that is not reasonably practicable, you will need to look at a range of methods which can minimise the risk of harm. However, the government’s guidance emphasises that:
- Workplaces should not encourage the precautionary use of extra PPE unless they are in a clinical setting or responding to a suspected or confirmed case of COVID-19.
- Unless employers are in a situation where the risk of COVID-19 transmission is very high, their risk assessment should reflect the fact that PPE has an extremely limited role in providing extra protection.
- In the event that your risk assessment did show that PPE was required (unlikely for any office), you would need to provide it.
Should employees wear face coverings at work?
Face coverings are no longer required by law. The new guidance says that employers should consider encouraging the use of face coverings by workers (particularly indoor areas where they may come into contact with people they do not normally meet, especially in enclosed and crowded spaces), and support those workers who chose to wear a face covering in doing so safely. Many employers are likely to require employees to wear masks when moving around the building, in corridors or lifts or in areas which could be congested. Some businesses may go further and require masks at all times for health and safety reasons. Any requirements on masks should be subject to reasonable adjustments for disabilities.
We explore this issue further in our article End of lockdown restrictions – what does the new workplace safety guidance say?
Do employees have a right to be notified if a colleague has suspected or diagnosed Covid-19?
No, there is no specific right. You owe the colleague a duty of confidentiality and data privacy obligations which would ordinarily mean that you should not disclose details about their health. On the other hand, you have a duty of care and statutory health and safety responsibilities towards your other employees. Try to balance these obligations by warning individuals who have been in contact with any suspected or confirmed case of Covid-19 without revealing the name of the colleague and, if that is not realistic, do not reveal any information any more widely than necessary.
Are we legally responsible for an employee’s journey to and from work?
We look at this question in more detail in our article on "Does an employer's duty of care extend to commuting to work?"
Employers do not have any statutory legal responsibility for an employee’s journey to the workplace. Health and safety legislation (such as the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999) covers only the risks which employees may be exposed to at work – not the risks they may face whilst travelling to and from work. The government guidance covers work-related travel, but not travel to and from work, although it does say that employers should stagger arrival and departure times to reduce crowding into and out of the workplace and provide facilities for alternative ways of travelling, such as by cycling.
However, in this unusual situation where the public health risks associated with using public transport are so significant, the courts might conclude that your implied duties of care, and to maintain trust and confidence, mean that you should take some account of the risks associated with an employee’s commute. In any case, leaving aside the legal position, commuting by public transport will be of very serious concern to your employees and the capacity of the public transport network is going to be very restricted - so there are good reasons to do what you can to ensure that employees can get to work, and can do so in the safest way possible. This could involve adjusting hours, providing extra parking and taking steps to enable more cycling. The government has issued guidance on safe travel which employees should consider before commuting.
In certain circumstances, employees have a statutory employment right not to attend a workplace if they have a reasonable belief that they are in serious and imminent danger, and it is less clear if this applies to the dangers of travel. We look at this right our FAQs on staffing decisions when reopening workplaces.
How should we protect our staff from abuse by visitors and customers?
Sadly, this is a real problem for many retailers. Some employees are experiencing abuse from customers who are angry about the behaviour of other customers and there is the risk that this sort of abuse will increase following the lifting of restrictions on 19 July and customers take differing views about what is appropriate behaviour. A failure to deal with abuse may be a breach of the implied term of mutual trust and confidence, leading to constructive dismissal claims. In addition, your duty of care to protect your employee’s health and safety can extend to protecting them from customer abuse.
Where abuse by customers is related to the employee’s gender, race or other protected characteristic, you should take account of the detailed guidance produced by the EHRC. The law that made employers explicitly liable for third-party harassment was repealed several years ago (although its re-introduction is under consideration), but this guidance explains why employers should nevertheless ensure they respond robustly to this sort of behaviour.
Make sure that managers and other employees know they should not put themselves in personal danger resulting from customer abuse. All managers should have received training on how to deal with this type of situation, including calling the police in certain circumstances. Posters warning customers that any harassment or violence towards staff will not be tolerated can also be helpful. Remember that you ultimately have the right to deny entry to your premises.
What is the position if our business or our employees are based in Scotland, Wales or Northern Ireland?
Public health matters can be decided independently of the UK government by the local governments of Scotland, Wales and Northern Ireland, but employment law can only be decided independently in Northern Ireland. This creates scope for complexity.
The workplace safety guidance has been published by the Westminster government. Scotland, Wales and Northern Ireland have, however, published their own guidance, with which businesses based there would need to comply.
Adjusting hours and responsibilities to ensure safe working
Can we temporarily change an employee’s working hours to stagger working hours, for example from 9am-5pm to 8am-4pm?
This could certainly be done with the employee’s agreement. If it is not possible to obtain consent, you could argue that a temporary and relatively minor change of this sort comes within the employee’s implied duty to comply with a reasonable management instruction. The scope of this implied term is uncertain, and you should be cautious about relying on it. You should also consider the individual’s particular circumstances and whether the change could potentially have a discriminatory impact on them.
What if an employee’s hours increase as a result of additional safety measures?
It is possible that some measures to enforce safe distancing and hygiene will result in the lengthening of an employee’s day because, for example, they need to queue to get access to changing rooms or carry out extra procedures. Some employees may be entitled to extra pay for these extra hours and it is particularly important to ensure compliance with national minimum wage legislation.
This publication provides general guidance only: expert advice should be sought in relation to particular circumstances © Lewis Silkin LLP 2021
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