- 10 Finsbury Square, London EC2A1AF
- +44 (0) 20 7628 2000
10 practical steps to take to reopen offices safely and a brief update on government support schemes
The easing of lock down restrictions in England that came into force this week on Wednesday 13 May has had very little impact so far on the army of lawyers, accountants, consultants, bankers, and other office workers beavering away unseen in their homes. Government guidance remains “Employees who can work from home should stay at home.” But planning for the eventual return to the office is well underway. In this edition, we set out the key steps we think employers should take now to ensure their eventual return to the office proceeds smoothly and in compliance with the law.
This article includes:
1. Step one - Learn from others
2. Step two – Carry out a risk assessment
3. Step three – Update your health and safety policy
4. Step four – Study the current government guidance
5. Step five – Draft a Covid-19 testing, tracing, and disease management protocol
6. Step six – Keep up to date
7. Step seven – Document everything!
8. Step eight – Consult staff and health and safety representatives
9. Step nine – Train managers and staff
10. Step ten –Focus on solutions to the difficult issues with other legal ramifications
11. Brief update on the Coronavirus Job Retention Scheme (the “Furlough Scheme”)
12. Brief update on the self-employed scheme
13. And finally, there are rumours of a possible new legal right to work from home
This week’s easing of restrictions means that many employers whose workers cannot work from home are now re-opening their workplaces. This gives other employers the opportunity to learn from their experiences, including how they manage the arrangements for travelling to work. Current government guidance is that, where possible, employees should travel to work avoiding public transport i.e. they should walk, cycle, or drive. However this will not be practical for the great majority of office workers whose workplaces are in central business districts, placing employers in a quandary as to how to tackle the issue.
In the 22 April edition of HRLaw we set out the legal health and safety responsibilities of employers (see here). Central to these is a requirement to carry out a risk assessment of the health and safety risks posed by Covid-19 in their workplace and to determine the reasonable measures that need to be taken to address risks identified. This requirement to carry out a risk assessment is applicable to all employers irrespective of their size.
This needs to be updated to set out the risks identified in the risk assessment and the measures that will be implemented to address them. Employers are not required to guarantee the safety of their employees, but they are legally required to take reasonable measures to safeguard the health and safety of their employees.
As to what reasonable steps should be taken, our advice is to follow government guidance closely. Specific guidance is now available for managing the return of those who work in or run offices or contact centres (see here). We consider it will be hard to criticise an employer who follows this guidance closely.
Some of the key points we have taken away from the guidance are:
- phase employees back into the workplace
- consider opening the workplace for those roles which cannot be performed remotely, and which are critical such as safe facility management, regulatory requirements, or operational continuity
- plan for the minimum number of people in the workplace (this may involve rotation of staff where possible)
- those who are advised to self-isolate should stay at home, whether they have Covid-19 symptoms or because other members of their household have symptoms
- protect workers who are clinically vulnerable (consider alternative roles where possible). Those who are shielding or are in the clinically vulnerable category should be provided with separate explanations as to what will be done to protect them, including working from home if necessary or carrying out tasks where social distancing can be followed.
- monitor the wellbeing of staff at home and in the office and, as far as possible, provide support to aid their mental health and well-being
- treat everyone fairly in the workplace and be mindful of the different needs of different groups of workers or individuals
- display the Covid-19 secure notice in the workplace
- increase frequency of hand washing and surface cleaning and clean the office before re-opening
- ensure, as far as reasonably possible, that employees can maintain two metre distance from others who are not in the same household
- where two metre social distancing is not possible, take all mitigating actions and consider whether it is possible implementing the following:
- split shifts into teams or shift groups
- staggering working hours
- limiting the time of activity
- performing tasks without facing others
- reducing number of people each person has contact with
- providing screens or barriers and one way systems
- avoid sharing equipment or workstations
- avoid in-person meetings
- keep a list of all visitors.
- PPE should be limited to only those settings where it is normally used. Face coverings are not mandatory and may only be marginally beneficial as a precautionary measure. This is an important point to keep under review as the guidance evolves.
We considered these issues in the 1 May 2020 issue of HRLaw available here. It remains our recommendation that employers start work now on a draft protocol for managing an outbreak of the disease in the office and their approach to testing and contact tracing.
The government has recently published guidance on testing (see here) which is directed at the public, professional users and industry makers and manufacturers. This is a fast-evolving area and so this protocol will require regular updating. It was announced today that Public Health England has approved an antibody test manufactured by Roche as a reliable test as to the presence of antibodies indicating that someone has at some stage been infected with Covid-19. This is potentially very useful to employers as it may serve to indicate which employees are immune from Covid-19. However, our understanding is that as of now, it is not known for certain whether everyone with antibodies is immune. Everyone is also awaiting further news of the government’s proposed contact tracing smart phone app (see our article here). We shall revisit this topic when more is known.
Ensure that an appropriately skilled member of staff is charged with monitoring government, Public Health England and WHO guidance and ensuring that risk assessments, health and safety policies and Covid-19 protocols are regularly updated and that the measures being adopted to manage Covid-19 risks are compliant with the official guidance in force at the time.
We strongly advise employers to invest time and effort in producing the documents listed above and in documenting their reasons for adopting a specific policy or measure by reference to the government guidance in force (or other reliable guidance) at the time. Keep every version of your key documents and a record of the dates on which they were in force. Also keep a hard copy or PDF record of the government guidance relied upon and the dates on which it was in force. If there are good reasons for departing from the guidance record these and the basis for your interpretation of aspects of the guidance. This will enable you to demonstrate after the event, if needed, that all reasonable steps were taken based on best advice available at the time.
Consult and discuss working arrangements with employees. Employers should not underestimate the importance of keeping an open dialogue with their employees about the steps they are taking to protect the workforce against the virus. The Health & Safety Executive has produced this guide to help employers with these discussions.
Consult with health and safety employee representatives. The Health & Safety Executive has also published this helpful short guide to working safely during the coronavirus outbreak.
Many employers are preparing questionnaires to send to staff asking about their individual circumstances as a starting point for consulting with them about their return to the office.
Make sure all workers understand Covid-19 health and safety protocols and procedures by providing clear and consistent guidance and training materials.
Our list of these includes the following:
- Staggered working hours
To relieve the pressure on public transport, particularly during rush hours, employers may wish to consider staggering working hours. Employers need to think carefully about how they implement such measures as a change to an employee’s working hours may be in breach of their employment contract. In addition, changes to working hours, depending on how they are implemented, may unfairly disadvantage certain groups, such as women, who often take on the role as carers for children or family members.
- Arrangements for travelling to work
Public transport creates a problem in terms of spreading the virus, but it is also a key enabler in terms of people returning to work. The government is keen to avoid overcrowding on trains and buses and has asked that those who can get to work without using public transport should do so. Employers may want to encourage employees, where possible, to drive or walk into the office or may consider promoting or implementing incentives such as the cycle to work scheme, which allows employees to benefit through a salary sacrifice arrangement to tax and National Insurance breaks (further guidance for employers on the cycle to work scheme is available here). Consultation with individual employees about how to travel to work will be important.
- Younger workers returning first
This is not a measure recommended in the government guidance, but many employers are considering whether younger employees should return first. Employers need to be mindful that some of the younger workforce may still be vulnerable to the virus because of underlying health conditions. Employers need to ensure they have considered individual circumstances before implementing a blanket age-based policy. A measure such as this is discriminatory treatment on the grounds of age, but it may be capable of objective justification by reference to medical data. However, we advise great caution here as the medical data is constantly changing. Absent government guidance on determining the age categories means employers will need to be careful where they draw the line in terms of the age groups and be clear as to the medical evidence on which they place reliance.
- PPE equipment & social distancing
With PPE still in limited supply, employers will need to think carefully about how much PPE they will be able to readily access and how much PPE will be required as their workers return to the office. The government guidance notes that workplaces should not be encouraging the precautionary use of extra PPE and that PPE can be extremely limited in providing additional protection. Despite this, if following a risk assessment, it is shown that PPE is required for the employee to work safely then employers are required to provide PPE free of charge to all workers who need it.
Employers should strongly encourage two metre social distancing at all times when in the workplace. Where this cannot be managed, face covering is highly encouraged to minimise the risk of transmission, but it should be acknowledged that this may only have a marginal effect.
- Rotating staff with some at home and some in the office
One approach employers may wish to consider is the rotation of employees. This not only limits the number of employees in the office at any one time but also means a smaller proportion of the workforce are exposed to the virus, either in the workplace or during their commute. This might be a good way of easing the workforce back to the office.
On 12 May, Chancellor Rishi Sunak announced the extension of the Furlough Scheme until the end of October 2020. The level of support for employees will remain unchanged at 80% of the employee’s salary up to the usual £2,500 monthly cap. However, the Chancellor has noted that from the end of July, this payment will be shared by employers and the government. It remains unclear how much of this sum will fall to employers, but we expect this will be clarified in the details relating to the extension which is expected to be published later this month.
Another welcome development is that from August to October employers will be able to bring back furloughed employees on a part time basis. This should help employers to manage a gradual phased return to work and protect some jobs from being made redundant.
The Chancellor also said that that the self-employed scheme would go live on 13 May 2020, ahead of its original schedule and as a result self-employed people could begin receiving cash payments from the government “as early as next week”.
Last week The Daily Telegraph reported that consideration was being given in government to introducing a new legal right to work from home where the responsibilities of the role can be delivered in this way. All employees already have the right to request flexible working, but this can be refused on one of the eight prescribed grounds. There is currently no legal entitlement to work from home, and the introduction of one would be a very significant change in the law. It was reported that such a right has been introduced in Germany and Finland.
If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak with your usual Fox Williams contact.
Articles and commentary by our legal experts on the impact of Covid-19 are all available here.