COVID-19 and Returning to Work: Employer Considerations

July 24, 2020

Update: The UK government’s Coronavirus Job Retention Scheme (CJRS) has been revised and amended throughout the crisis, and will be phased out and will close on 31 October 2020. For more details, please refer to our July 31, 2020, alert.

The UK government's COVID-19 Recovery Strategy, first published 11 May 2020, is a work in progress. The government’s most recent update is that, from 1 August 2020, employers will be able to exercise their discretion to ask employees and workers who currently work from home, to return to work, subject to compliance with social distancing (in England and Northern Ireland now, “one metre plus”) and other measures to ensure work environments are “COVID-secure.”

Outlined below are the principal issues and risks associated with returning to the workplace for UK employers to consider. It should be noted, however, that the UK’s devolved nations have developed bespoke strategies to ease their lockdowns, and cross-border employers should be alive to the variations in the rules and guidance (for example, Scotland and Wales currently retain the two-metre social distancing rules). Although the issues facing employers will be similar across the UK, the rules and guidance set out in this article are those applied in England.

The government’s Working Safely During Coronavirus (COVID-19) Guide, which applies to England, was last updated on 10 July 2020 and outlines five steps for employers to follow. Also available are iterations of the guide as it applies to Wales, Scotland and Northern Ireland.

COVID-19 Risk Assessment

Employers must conduct a suitable and sufficient risk assessment of all the work activities carried out by their workers, including those working from home, to identify risks and assess their severity and in line with the Health and Safety Executive’s guidance. What qualifies as suitable and sufficient depends on the context, including replace of work. The government has published 14 guides covering a range of different workplaces, from offices to the factory floor in England.

Risk assessments and subsequent mitigation measures should be well-documented to reassure workers and to demonstrate compliance in the event of a challenge. The government expects employers with more than 50 employees to share the results of the risk assessment with the workforce and publish them on the employer’s website and all employers are encouraged to do so.

The government has created an online tool to assist employers in England in carrying out a COVID-19 risk assessment and to identify associated adjustments to be made to the workplace.

Cleaning and Hygiene Procedures

Clear and accessible guidance on workplace and personal hygiene should be developed and tailored to each business following a comprehensive risk assessment. Employers are encouraged to provide hand sanitiser and frequently clean and disinfect surfaces and introduce enhanced cleaning for busier areas. Face masks are required for travel and entry into shops, but current guidance does not extend to wearing masks in offices (although in some work environments, this may be desirable).

Employers should encourage workers to report any contact with people with symptoms of COVID-19 and support workers who self-isolate when needed. There are limits to the reach of employers, however, even where mitigation measures are well-intentioned. For example, employers cannot generally require workers to divulge personal information about potential COVID-19 contact or to take temperature tests, etc., given the data protection and contractual issues associated with such requirements. However, employers can instruct employees who have symptoms of COVID-19 or live with someone who does, not to attend their place of work and employees can be disciplined if they then do so.

Support Working From Home

Where employees are required or permitted to work from home, they should be adequately supported in doing so. This may include providing adequate equipment and taking reasonable steps to safeguard the physical and mental well-being of workers, for example by regularly checking in on workers. Employers should be mindful of their continuing health and safety legal obligations under the Health and Safety at Work Act 1974 and the Health and Safety (Display Screen Equipment) Regulations 1992, including undertaking a sufficient risk assessment, generally providing a safe place of work and, so far as is reasonably practicable, for supporting a worker’s welfare, health and safety by, for example, monitoring work and stress levels.

Employers should look at each home worker’s particular needs to ensure that they comply with any duties they may have toward that individual. For example, if a home worker has a disability, the provision of equipment (or reimbursement of the worker's equipment expenses) or allowing the worker to continue to work from home may all be required as reasonable adjustments under the Equality Act 2010.

Working from home presents data security risks. Many employers may want home workers to use only the employer's computer equipment to ensure compatibility with the employer's systems and to ensure that adequate virus protection and security measures are in place. Employers will need to keep in mind that home workers will be required to continue to keep confidential information secure when working from home as they would when working in the office. It would be good practice to remind those workers of their obligations in this regard and consider reviewing and updating their information management and data protection guidelines to take into account longer-term home working.

Managing Transmission Risk

Employers should implement the one-metre-plus social distancing measures by, for example, using floor tape to mark out one- to two-metre distances, implementing one-way systems, avoiding shared workspaces and encouraging in-person meetings by appointment only.

Employers should also encourage workers to avoid public transport where possible by walking or cycling to work. Employers could look to introduce cycle to work schemes, expand bicycle storage facilities and adjust changing facilities. Each workplace will have different challenges, but some of the suggested measures include: (a) staggering working hours to avoid public transport at peak times; (b) implementing one-way systems within a workplace; (c) increasing the number of entrances and exits to avoid congestion; and (d) reducing any unnecessary contact by promoting alternatives to face-to-face meetings.

Consultation

Employers should review any agreements with trade unions or employee representatives to see if they must formally consult about return-to-work proposals.

Acas has published its Coronavirus (COVID-19): Advice for Employers and Employees Guide, which suggests that, even if there is no obligation to formally consult, it is good practice to solicit and consider employees’ and workers’ views, particularly from fire wardens or health and safety representatives, around proposals to return to work to flush out any specific issues, such as whether a particular measure disproportionately and adversely affects certain people over others. Consultation may promote worker buy-in to the idea of returning to work and offer reassurance.

Flexibility

The anticipated fluctuations in the COVID-19 infection rate and associated health and commercial risks necessitate that employers be dynamic in their response planning, perhaps well into the medium to long term. The COVID-19 crisis may have generated particular issues for some workers, such as childcare and shielding responsibilities which may result in an increase in formal and informal requests for flexible working arrangements. It would be sensible to put in place processes to respond to such requests reasonably.

Record Keeping

The COVID-19 Secure Guidelines (Working Safely) were revised 3 July 2020 to address situations where a localised outbreak has been identified. In response to such an outbreak, employers will be asked to record details of symptomatic workers to assist the NHS Test and Trace Service in England with identifying contacts. Employers who rely on adhering to certain work shifts, such as factories and construction sites, should also maintain records of staff shift patterns for the same period. Employers are therefore advised to ensure that all their worker contact details and employment records are updated.

Dealing With Concerns and Refusals to Return to Work

Workers may have concerns about their own elevated risk from COVID-19 if they have underlying health conditions, or about managing their childcare responsibilities or anxieties about transmission to someone they are shielding, etc. (although, from 1 August 2020, vulnerable people in England who were advised to shield are able to return to work and employers will no longer be able to claim statutory sick pay for staff members who are shielding).

Acas recommends that employers talk to workers who are concerned about returning to work and the proposed mitigation measures to try to collaboratively reduce anxieties early on. Employers can take a view as to whether to maintain certain employees and workers on furlough (although the Coronavirus Job Retention Scheme is being phased out and terminated on 31 October 2020), agree to part-time work or allow them to take either paid or unpaid leave. Employers are not obliged to do so, however, and any response would be a commercial and contractual decision. Those employees who unreasonably refuse to return to work may be dismissed (see below).

Employers should also brace themselves for an increase in formal grievances around returning to workplaces. Employers may be facing tough decisions about how to deal with workers who, despite reassurance and additional safety measures, still refuse to return to work. Ultimately, workers who unreasonably refuse to return to work may face disciplinary action, up to and including dismissal. Although employers must exercise care in invoking disciplinary procedures in all the circumstances, as COVID-19 will be a contextual factor in determining whether an employer’s response was reasonable, in some cases dismissal will be the appropriate cause.

For more detailed advice in respect of any of the above headline issues or for advice on associated business restructuring, please contact Dan Peyton or Adam Penman.

McGuireWoods has published additional thought leadership analyzing how companies across industries can address crucial business and legal issues related to COVID-19.

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