Returning to work post-lockdown: FAQs for employers

The Government has published updated non-statutory guidance to help employers manage the next phase, "Working safely during coronavirus (COVID-19)" (the Guidance) for different types of business.  This briefing focuses on returning to the office environment.  Acas has also produced updated guidance.  The guidance and advice from the Government and Acas is constantly being updated so employers should ensure that this is regularly checked to make sure they are up to date.  The Government is intending to review guidance in September 2021 as winter approaches. 

The Guidance sets out priority actions all businesses should take to help protect staff and clients/customers:

1. Complete a health and safety risk assessment that includes the risk from COVID-19.  Businesses should also consider reasonable adjustments needed for staff and customers with disabilities.  The risk assessment should be shared with all staff and kept updated.
2. Provide adequate ventilation. Businesses should make sure there is a supply of fresh air to indoor spaces where people are present.  Poorly ventilated spaces should be identified and steps taken to improve the flow of fresh air. 
3. Clean more often.  It is especially important to clean surfaces that people touch a lot e.g. door handles and keyboards.  Staff and customers should be asked to use hand sanitiser which should be provided at entry and exit points and to clean their hands frequently.
4. Turn away people with COVID-19 symptoms. Members of staff or customers should self-isolate if they or someone in their household has any symptoms of COVID-19.  They should also self-isolate if they or a close contact has had a positive COVID-19 result or if they have been told to self-isolate by NHS Test and Trace.  It is an offence to knowingly allow a worker who is self-isolating to come to work. 
5. Enable people to check in at your venue. Although this is no longer legally required, doing so will support NHS Test and Trace.  Businesses can enable people to check in by displaying an NHS QR code poster in which case they should also have a system in place to record contact people who want to check in but do not have the app.
6. Communicate and train.  Businesses should keep all their workers, contractors and visitors up-to-date on how they are using and updating safety measures.

The Guidance also covers the approach to risk, who should go to work, ventilation, ways of reducing contact for workers, reducing risk for customers, visitors and contractors, cleaning the workplace, PPE and face coverings, workforce management, and tests and vaccinations. 

The Guidance does not supersede employers’ existing legal obligations in relation to health and safety, employment and equalities duties but should be considered when complying with those existing obligations. 

Employers have statutory and common law duties to provide a safe place of work and need to consider the risks workers face and do everything reasonably practicable to minimise those risks.  This involves:

1. Consultation with workers.  Employers need to listen and talk to workers about the work they do and how any risks will be managed.  The people doing the work are often best placed to understand the risks and have a view on how to work safely.  Employers must consult with the health and safety representative selected by a recognised trade union, or if there isn’t one, a representative chosen by the workers, or the workers themselves, about the health and safety aspects of returning to work following the relaxation of lockdown restrictions.
2. Carrying out suitable risk assessments to identify the risks.  Each set of guidelines says that employers should carry out a COVID-19 risk assessment and identify control measures to manage that risk.  Risk assessments should consider different groups of workers (e.g. vulnerable workers) who are likely to require additional measures.
3. The Health and Safety Executive (HSE) provides general guidance on Managing risks and risk assessment at work and how to conduct a risk assessment, which will need to be adapted using the appropriate workplace guidance for your particular environment. 
4. Once the risk assessments have been completed, take steps to reduce the risks identified.  Whilst employers will not be able to eliminate the risks altogether, they must take all reasonably practicable steps to minimise those risks.
5. Whilst significant findings from risk assessments should always be written down if there are more than five members of staff, the Guidance also recommends that businesses consider publishing risk assessments on their websites.  Employers with more than 50 employees are expected to do so.

Existing health and safety legislation protects employees against detriment, such as non-payment of wages or dismissal, if they refuse to attend work because of a reasonable belief that attending work would put them in serious and imminent danger.  If you have taken all reasonable steps to assess the risks at work and addressed these in line with the Guidance, then this should be sufficient in relation to the workplace itself and it is likely that any fear of imminent and serious danger is not reasonable on the part of most employees.

In the short term at least however, taking disciplinary action against genuinely fearful employees may not be the best course of action.  Acas recommends talking to employees who are anxious about safety to try to resolve concerns together.  If an employee does not want to go back to work the employer might enable them to take annual leave or unpaid leave but is not obliged to do so. 

Whilst there is no specific statutory responsibility on employers for an employee’s journey to work (as distinct from travel in the course of work), the current situation is unusual and it is possible that the protection could be potentially wide enough to cover an employee who has a reasonable belief that their commute represents a serious and imminent danger.  Consult and speak to staff about their concerns and what steps you can take to meet those concerns.  This may involve adjusting hours, providing additional parking and taking steps to enable more cycling. 

Discussing employees’ concerns, and taking steps to address them, will hopefully resolve most issues. 

The clinically extremely vulnerable category includes organ transplant recipients, people with certain cancers, those with severe respiratory conditions and pregnant women with significant heart disease.  It is also likely that individuals in this category will be disabled within the meaning of the Equality Act 2010, which gives them additional protection. 

The removal of both social distancing measures and the instruction to work from home will increase the risks for clinically extremely vulnerable workers who may not respond as well to COVID-19 vaccines as others.  The Shielding Guidance updated on 19 July 2021 states that employers have a general legal duty to protect their employees and others from risks to their health and safety.  As a result some employers may ask employees to undertake regular testing to identify people who are asymptomatic.  Other measures may be necessary and the clinically extremely vulnerable should consider adopting a more cautious approach now restrictions are lifted.  The Shielding Guidance does not say that they have additional rights to work from home beyond 19 July.  However, it does state that these workers should be supported by discussing their individual needs, taking precautions advised by their clinicians and that employers should consider providing support around mental health and wellbeing including advice or telephone support. 

The extremely clinically vulnerable should therefore continue work from home if possible, if that is not possible they can remain on furlough whilst the scheme is available until 30 September 2021.

Many of those in the clinically vulnerable category (which includes those with underlying health conditions who are advised to get a flu jab annually, the over 70s and pregnant women) may also be disabled under the Equality Act (save those who are simply pregnant or over 70 with no other issues) which will give rise to protection under that legislation, including a duty to make reasonable adjustments. 

There is recognition that anyone who is clinically vulnerable may be at greater risk from COVID-19.  Employers should conduct a risk assessment and may need some medical guidance on what the safest role is for these individuals.

Whilst in the short term it may be practical to allow this, there is no specific right to insist on it.  Consultation with the individual will be key to assess whether there are other steps they could take to enable them to return, such as isolating in the house. 

In addition to the protection above, pregnant women are protected in law against risks to their health and safety and that of their baby, as well as against unfavourable treatment because of their pregnancy.  Unless they have a heart condition however, pregnant women are not classed as clinically extremely vulnerable, although they are classed as clinically vulnerable.

Under existing provisions a specific risk assessment is required for a pregnant employee and if no safe work can be identified, she is entitled to suspension on full pay.

The legal requirement to wear a face covering in certain businesses no longer applies from 19 July 2021.  However, the Government “expects and recommends” that people continue to wear face coverings in crowded, enclosed spaces. 

The Government’s specific Guidance on Face coverings states that businesses can require or encourage customers, clients or their workers to wear a face covering.  The Government leaves it to organisations to decide when it is appropriate to make face coverings mandatory and much will depend on the outcome of the risk assessment.

You should therefore consider face coverings as part of your risk assessment.  It may be appropriate to encourage the wearing of face masks particularly in indoor areas where people may come into contact with others they do not normally meet.  Employers should take account of any reasonable adjustments that may be needed for disabled staff and visitors and how this fits with other obligations to workers under employment law and health and safety legislation. 

The ICO has published detailed guidance on Vaccination and COVID status checks.  A self-certificate of vaccination status would be “special category” data and therefore if an employer wants to ask for this information it needs to identify a lawful basis and a condition for processing.   

The ICO guidance states that the reason for recording the vaccination status must be “clear and necessary and transparent” and there must be a use for the information rather than being held “just in case”.  The sector, the nature of the work and the health and safety risks in the particular workplace will be relevant in deciding whether there are legitimate interests to record the vaccination status of the staff.

It would therefore be a good idea to carry out a data protection impact assessment and then to outline in a simple document the policy reasons for requiring self-certification. This policy can also explain how the data will be kept secure, used, how long it will be retained and that it will not be disclosed elsewhere.

The ICO states that if the check of vaccination status involves visual (not digital) check of a COVID pass and the employer does not retain any personal data from it, this would not constitute “processing” and therefore the activity would fall outside the UK GDPR’s scope.  However, if any record is kept, then you are processing personal data and the UK GDPR and the Data Protection Act 2018 would apply. 

Employers should consider carefully whether it is appropriate to prevent unvaccinated staff from returning to work before making a decision.  Current Government advice is clear that the vaccination status of the workforce has no impact on the COVID-secure guidelines employers must follow.  The extent to which vaccination reduces the risk of transmission is still under review.   

If an employer refuses to allow someone who has not been vaccinated to return to the office they risk discrimination claims based on age, disability, race, pregnancy or maternity and religion or belief.

Employers do, however, have health and safety obligations to their employees and those entering their workplaces and there are serious consequences for non-compliance. 

Whilst the Government guidance does not include temperature checking or testing as a step to consider, many employers are considering these extra precautions.

The Information Commissioners Office (ICO) has provided detailed Data Protection Guidance on testing, making clear that data protection law does not prevent employers from taking the necessary steps to keep their staff safe.  Additional steps may help reassure staff that it is safe to return.

Employers can process some health information for the purpose of complying with health and safety duties, but this needs to be both necessary and proportionate and data must be handled responsibly and with care.  If you are considering undertaking testing then you should conduct a data protection impact assessment focusing on the new areas of risk, and take into account the ICO guidance on workplace testing.

The ICO states that employers should give specific thought to the purpose and context of carrying out temperature checks and will need to be able to make the case for carrying out such testing or monitoring.  You should consider whether you can achieve the same results through other less privacy intrusive means and if so, then the monitoring may not be considered appropriate. 

Note also that taking temperatures is not a measure currently recommended by the Government or WHO.  

This involves similar legal issues to having a compulsory temperature test.  Whilst employers understandably have health and safety reasons for testing, employees may regard it as an unnecessary invasion of their privacy.  

If the employer considers it is entitled to process the data, there is a health and safety need to administer the tests and it is otherwise reasonable in the circumstances, it would need to consider how to implement the requirement including consulting the workforce before implementing any new testing policy.  In doing so, employers should take into account ICO guidance and the Acas guidance which includes a section on testing.  It should also keep under review the progress of the vaccination programme and its efficacy at reducing transmission as this will impact decisions about workplace testing. 

There is only a legal requirement to self-isolate when notified by NHS Test and Trace, not when alerted by the NHS COVID-19 app.  However, the Government clearly expects those notified by the app to self-isolate as the workplace guidance provides that if workers have been notified via the app they should not attend the workplace to minimise the risk of spreading the virus. 

From 16 August, fully-vaccinated individuals and the under 18s will no longer need to self-isolate if they are identified as a close contact of someone with COVID-19. 

There are reports of employers asking employees to pause or delete the NHS COVID-19 app because of potentially inaccurate notifications through the app and/or the resulting effect on employee absence. 

Although the NHS Test and Trace guidance sets out some specific circumstances when the app may be paused in the workplace, it is not advisable more generally for an employer to try to undermine the functioning of the app to minimise its own absence levels.  Asking employees to do this could be risky from a health and safety perspective as well as damaging to employee relations if it is perceived as denying employees an opportunity to protect themselves and their colleagues.    

In fact, employers are encouraged to facilitate and support employee use of the app wherever possible.  It should be remembered however, that it is not mandatory for staff to have the app. 

If anyone becomes unwell at work with COVID-19 symptoms they should be sent home and arrange to have a test.  Employers are banned from requiring workers who are self-isolating from coming to work. 

In the event of a suspected outbreak in the workplace employers will need to contact their local health protection team.  The NHS Test and Trace guidance also states that employers need to call the Self-isolation Service Hub as soon as they are made aware that any of their workers has tested positive and will need to provide the NHS Test and Trace Account ID of the person who tested positive along-side names of co-workers identified as close contacts.  

In terms of notifying colleagues, you have confidentiality and privacy obligations towards the ill member of staff, but you also have a duty of care to other employees.  Colleagues should be warned that they have been in contact with someone who has now tested positive and if it is not realistic to keep the ill employee’s identity anonymous, reveal no more information than necessary.

Your risk assessment should highlight the steps you need to take to minimise the risks of transmission at work.  In an office environment it is extremely unlikely that PPE would be necessary.

If some members of staff feel more comfortable wearing face coverings, they can do so, but this is not a substitute for the other methods of reducing the risks highlighted above. 

A refusal to work, or complaints about the working environment may amount to a protected disclosure.  Whilst it is not always clear whether a concern raised amounts to a protected disclosure, it is sensible to assume that a complaint may be a valid disclosure and ensure that the complainant is not subject to any detrimental treatment in order to limit potential exposure.