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Global HR Lawyers

End of lockdown restrictions – what does the new workplace safety guidance say?

15 July 2021

The government has updated its guidance on how to make workplaces Covid secure from 19 July 2021 when England moves to step 4 and most Covid-19 restrictions are lifted. This article sets out the most important issues for employers to consider in light of the new guidance.

The existing 14 guides to working safely during coronavirus will be replaced by 6 new sector-specific guides from 19 July.

Guidance on social distancing, working from home and reduced occupancy is dropped and replaced with six priority actions:

1. Carry out Covid-19 risk assessments
2. Provide adequate ventilation
3. Clean more often
4. Turn away people with Covid-19 symptoms
5. Enable people to check in using the NHS Covid-19 App.
6. Communicate and train

Overall, there is a marked change in emphasis compared to the previous guidance. References to making the workplace Covid-secure have been removed. The reference to “stop the spread” has changed to “reduce the risk”, “minimising risk” has changed to “reducing risk”, make your business safe” has changed to “make your business safer”, and “you must consider the recommendations” has changed to “you should consider the recommendations”.

Working from home

The government is no longer instructing everyone in England to work from home if they can. It is, however, expecting and recommending a gradual return to the office over the summer. It is suggested that employees in Scotland and Wales continue to work from home if they can.

Employers that wish to mandate a return are therefore in a stronger position to do so. While some employees cannot wait to return to the office, others are reluctant to do so, and employers need to ensure that they are complying with their duty of care and managing their employment law risks.

A phased return could involve:

  • Only requiring (or allowing) employees to return only when fully vaccinated (subject to exceptions) – see our FAQs on vaccination.
  • A hybrid model where staff only attend the office one or two days a week and offices are not run at pre-epidemic capacity levels.
  • A “volunteers only” policy.
  • Creating teams (cohorts) where groups of employees work different patterns (e.g. one week in and one week from home).

Employers should take particular care with pregnant and clinically extremely vulnerable employees, who may have stronger legal arguments to continue working from home for the time being– see our FAQs on staffing decisions.

Employers should also watch out for the additional advice being published for employees in parts of England where the Delta variant is spreading fastest. Employees in these areas are currently advised to continue working from home if they can, and to minimise travel in and out of affected areas.

Risk assessments and consultation

As the guidance points out, Covid-19 is a workplace hazard that must be managed in the same way as other workplace hazards by completing a suitable and sufficient assessment of the risks and identifying control measures to manage the risk. The new guidance lists the different ways the virus can spread (through aerosols, droplets and contaminated surfaces) and identifies some control measures to consider. None of those control measures is mandatory, so employers can choose a mix of those or other measures dependent on their own assessment of risk and not all employers will adopt the same approach.

The Health and Safety Executive (HSE) has produced some updated guidance but has not yet updated its template Covid-19 risk assessment which still relies on social distancing as a key control measure. Whilst HSE guidance is not legally enforceable, it can be used in any legal proceedings against employers who fail to comply with it.

We expect that most businesses will start with their existing risk assessment and review what has changed. One common and possibly safer approach may be to simply conclude that nothing has changed and retain all existing control measures in place. We are seeing several companies adopting this approach and there may be good reasons for doing so, particularly as we are likely to see more vulnerable workers return to workplaces now that shielding is paused.

It is interesting that the HSE risk assessment has not yet been updated and does not yet factor in the impact of vaccination, yet the vaccination programme forms the basis of the relaxation of restrictions. Employers may nonetheless decide to adopt a policy that only fully vaccinated employees or employees with a negative lateral flow test should attend the workplace (see below).

The new guidance also highlights the legal duty on employers to consult workers on health and safety matters and recommends that employers develop communication and training materials for workers prior to returning to site. For businesses that have already engaged in active consultation and plan few changes, that is likely to be a light touch process. For others, consultation may be much more important. For example, a business that wishes to keep additional safety measures in place when they are not mandatory outside the workplace may find it easier to achieve compliance (and discipline those who fail to comply) if those measures reflect the outcome of an active consultation.

Social distancing

Social distancing requirements have been dropped 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 two metre (or one metre with mitigation) distance between staff members. However, the guidance on office layout may in fact result in social distancing in some work environments, particularly open plan workspaces where people would normally sit face-to-face. The guidance on ventilation also suggests reducing the number of people in an area as a potential control measure, and employers may therefore choose to retain social distancing to help achieve this.

Face masks and PPE

Face coverings are no longer required by law. However, the new guidance says that employers should consider encouraging the use of face masks, particularly in indoor areas where they may come into contact with people they do not normally meet. This is especially important “in enclosed and crowded spaces”.

Many employers seem likely to require employees to wear masks when moving around the building, in corridors or lifts or in areas which could be congested. This may be particularly appropriate in shared offices where communal areas are likely to include people who do not have the same employer. Some businesses may go further and require masks at all times, either for health and safety reasons or to accommodate staff wishes of staff or for business reasons if customers may otherwise go elsewhere. You will be in a stronger position to defend taking any disciplinary action for refusals to comply if your instruction is a health and safety control measure. Although there is limited caselaw on this issue, at least one Employment Tribunal decision indicates that it may be fair to dismiss employees who refuse to wear face masks in situations where they are mandated for health and safety reasons, even if not legally required. Any requirements on masks should be subject to reasonable adjustments for disabilities.

There is nothing to stop businesses continuing a requirement on customers to wear masks provided that they make reasonable adjustments for disabilities. There is the very real risk of conflict with some customers who will believe that you do not have the right to do this. You will want to consider these risks which, in extreme cases, could amount to a risk to staff; but you have the right to refuse access to your premises.

Ventilation

The new guidance puts a heavy emphasis on adequate ventilation, including using CO2 monitors to indicate how well ventilated your space is. The HSE has acknowledged, however, that CO2 monitors have limitations and are dependent upon the environment in which the testing is taking place. Such tests can be misleading and only relevant to the time they were taken.

Employers operating in buildings with sealed window units should consult with their building managers on the appropriate way to measure air flow. Employers should also investigate whether the air conditioning system can be varied to increase fresh air within the building and consider reducing occupancy levels as a control measure.

Office layout

The removal of social distancing guidelines means that there are no longer any limits on occupancy, so in theory (and subject to the guidance on ventilation above) an office can operate at pre-pandemic capacity levels. However, the advice has shifted away from keeping physical distance towards reducing face-to-face contact.

The new guidance suggests that employers consider installing screens or barriers if employees cannot work back-to-back or side-to-side. Employers expecting lower occupancy levels may prefer to retain physical distancing between desks. If you will use screens or barriers to reduce close contact, then you may want to remind employees who use the NHS Covid-19 App that they should pause contact tracing when working behind a fixed screen and fully protected. This course of action has also been recommended to people who leave their mobile phones unattended in lockers and may help reduce the numbers of employees being “pinged” by the App and advised to self-isolate unnecessarily.

The guidance says that workstations should be assigned to an individual if possible. If they need to be shared, there should be ways to clean them between each user. In practice, this means that desk booking systems are still allowed, with an overnight clean, but assigning dedicated desks to individuals on an ongoing basis is preferable. It also means that employees who move around the office to different workstations depending on their activity will need to clean each workstation thoroughly before use (and may need training on this) and you should make sure there is a full and thorough clean each night.

Guidance on signage is largely still in place, to remind employees to maintain hygiene standards and wear face coverings in crowded and enclosed settings.

The new guidance seems to be silent about lifts, but these have proven to be a pinch point in the past so employers will need to consider measures such as signage and staggered entry times.

Meetings, working in fixed teams and collaboration

From 19 July there are no longer any legal limits on the number of people who can attend meetings at work. The guidance does not have any specific advice about conducting safe meetings, although the guidance on ensuring good ventilation and cleaning will be relevant.

Employers should also bear in mind the advice to reduce the numbers of people each person has contact with. The guidance proposes “cohorting” (so each person works with only a few others) as an example of a way to do this. Cohorting may be challenging in many office environments unless, for example, employees work in designated shifts or project teams, or they come to the office on different days. The advice to reduce social contact in this way is likely to be most relevant for businesses expecting (or requiring) significant numbers of employees to return. Businesses embracing a hybrid working culture, and therefore expecting lower levels of overall occupancy, may be satisfied that the hybrid working model sufficiently reduces contact.

Sick and self-isolating staff

There are ongoing requirements to self-isolate for those who test positive for Covid-19 or who have been contacted by NHS test and trace. Employers should ensure that those staff do not attend the workplace. See our updated FAQs on sickness absence and sick pay for more detail.

Testing, vaccination and the NHS Covid pass

The new guidance does not refer to vaccination, except to say that it is important to continue to put measures in place to reduce the risks of transmission even if your workers have had the vaccine. Regular testing is not identified as a specific control measure although this is still encouraged by other government guidance.

The guidance for restaurants, pubs and bars says that the government will work with organisations that operate large, crowded settings (for example, nightclubs) to use the NHS Covid pass as a condition of entry. The NHS Covid pass is already being used for some large events (on a trial basis) and for overseas travel. It is available to individuals who are fully vaccinated, have tested negative (using a PCR or lateral flow test) in the previous 48 hours, or can be taken to have natural immunity because they had a positive PCR test in the previous 6 months. In its review of whether Covid passports should be mandated, the government said that it will also allow individuals to demonstrate that they are medically exempt.

It is unclear if any business will be allowed to opt in to using the pass, or only venues that operate large crowded settings, and if it can be used for staff as well as customers. Some employers may, however, consider asking employees for the same details (i.e. double vaccination, negative test or positive test in last 6 months) as part of a gradual return to the office. Such an approach is less legally risky than mandating vaccination, since it enables individuals who object to vaccination to adopt the alternative of testing, but nonetheless carries discrimination and data protection risks so needs to be managed carefully. See our vaccination FAQs and testing FAQs for more details.

Next steps

The key next steps are as follows:

  • Review and update your risk assessment in light of the new guidance and revise plans for homeworking, ventilation, office layout and meetings etc.
  • Decide your position on face masks and social distancing.
  • If you are mandating a return to the office, be ready to deal with formal flexible working requests – staff may be prompted to make such requests if they wish to continue working from home.
  • Take steps to ensure that you are mitigating the risks of employment claims by, for example, having clear processes to manage employee complaints about workplace safety including complaints that other employees are not observing your rules - see our table of mitigating steps.
  • Pay particular attention to anyone who is at higher risk (especially pregnant employees and anyone who is extremely clinically vulnerable), and discuss reasonable adjustments with disabled employees - see our FAQs on staffing decisions.
  • There is a real risk of employees taking very different views about what is safe or appropriate. It will be necessary to take individual circumstances into account so consider having processes in place to handle disputes and ensure that outcomes are consistent.
  • Decide your position on vaccination and testing. Voluntary schemes are less risky than mandatory schemes, so you could consider starting with a voluntary scheme. Mandatory schemes are less risky if employees can choose to continue to work at home instead. If adopting any vaccination or testing scheme, make sure you comply with data protection obligations and mitigate the risks of discrimination claims for example by making case by case exemptions if necessary – see our vaccination FAQs and testing FAQs for more details.
  • Consult and communicate with staff about your proposed new rules and protocols throughout and be open to their opinions and concerns. This will put you in a stronger position to enforce the regimes you have decided to adopt or maintain.

 

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