Long time, no see! Are you ready to go (safely) back to the office?
‘Freedom day’ is here – 19 July marks the lifting of many restrictions, in England, at least. Although many are delighted by the prospect of an end to certain COVID restrictions, the very steep rise in current numbers of infections are a great concern to others. In England, social distancing measures will no longer apply by default in the workplace, and there will no longer be a general instruction to work from home.
A slower approach is taking place in Wales: Alert Level 1 will be in place until at least 7 August, meaning individuals must still work from home if they can, wear a face covering in all indoor public places and observe restrictions on how extended households can form for the purposes of meeting indoors.
In Scotland, the First Minister, Nicola Sturgeon, has confirmed that the current guidance to work from home where possible will remain when Scotland moves to level 0 on 19 July 2021. A “phased and limited” return to offices will now be postponed until Scotland moves beyond level 0, which is intended to take place on 9 August 2021.
However, whichever nation you are based in, employers are, as always, obliged to take care of their employees, whether in the office or at home. Many businesses are continuing with the same measures and arrangements which they’ve been following throughout the pandemic. Communication and enforcement will continue to be key for employers and the loosening of country-wide rules may mean that some employees will argue about the basis for your organisation maintaining a cautious approach. As ever, if the business issues reasonable instructions regarding the way in which it requires staff to behave, or the protocols which should be followed, the wider national changes do not entitle staff to resist those instructions.
The Working Safely guidance from the Government here has been updated to reflect the 19 July changes. Its six sector-specific guides cover the main activities for workplaces such as offices, factories and labs. Six priority actions are identified for businesses to take in protecting staff and customers, including:
• health and safety assessments
• providing adequate ventilation
• regular cleaning
• turning away those with COVID-19 symptoms
• enabling people to check in to premises, and
• talking to staff & providing training on the current safety measures in place.
The guidance advises employers to put measures in place to reduce contact between people, such as rotating fixed teams, to limit contact to as few others as possible, utilising physical measures, such as screens and barriers where people are in close proximity, and arranging workspaces to facilitate back-to-back or side-to-side working, instead of face-to-face. If possible workstations should be assigned, but where hot-desking arrangements are unavoidable, employers should ensure adequate cleaning between users. Despite much trumpeting of a ‘farewell to masks’ in some quarters, the more cautious approach of using face coverings for workers and customers is still encouraged in enclosed or crowded spaces. Perhaps with the ‘anti-maskers’ in mind, the guidance states that employers should support workers who chose to wear a face covering, but should be mindful of those with disabilities before requiring that one is worn.
The guidance does make it clear that it does not supersede employers’ existing health and safety, employment, and equalities duties. It amounts to non-statutory guidance, to take into account when complying with those existing obligations. Employers would be well-advised to note that any failure to follow the guidance could well be cited as evidence of failure to take reasonable steps in any future employment or personal injury claims. Employers are also advised to carefully consider how to support workers who are at higher risk, and those facing mental and physical health difficulties. Suggested support includes discussing their individual needs and taking any additional precautions advised by their clinicians. Occupational health advice may well be helpful in ensuring that all relevant health and workplace considerations have been addressed.
The loosening of restrictions is a significant concern for many groups and will, no doubt, increase the risks for the clinically extremely vulnerable, who may not respond as well to COVID-19 vaccines as others. The vaccines are not regarded as a complete defence against the virus and, from an employment perspective, the guidance points out that employers have a legal duty to protect their employees and others from risks to their health and safety; that will include protecting all staff, the vaccinated and the vulnerable and the rest. Some employers may continue to ask employees to undertake regular COVID-19 testing to identify people who are asymptomatic. Other measures may be necessary, and the clinically extremely vulnerable may well want to adopt a much more cautious approach as restrictions are lifted, which employers will be advised to bear in mind.
New self-isolation rules will also come into force and for the time being it will remain a legal requirement for individuals to self-isolate if they test positive or are told to do so by NHS Test and Trace, regardless of their vaccination status. However, from 16 August, the government intends to exempt those who are fully vaccinated from the requirement to self-isolate if they are a contact with a positive case: “double-jabbed” individuals and under 18s will no longer need to self-isolate if they are identified as a close contact of someone with COVID.
In summary, we are obviously back into the realms of risk assessing our workplaces from the perspective of all the usual health & safety and duty of care obligations, but without the ability to reference external COVID rules. Clearly, business has to address what measures it can put in place to protect those at greater risk from contracting COVID and, arguably, the risk to certain parts of the population are now going to increase, which increases the burden of establishing which staff are more vulnerable people and how we are to protect them. The risk assessment could also sensibly address how we protect everyone else, because we know that it can be a very serious risk to those who have no underlying conditions and there is insufficient evidence as yet regarding the extent of the protection of the vaccines and what boosters will be required.
A well-thought through and well-communicated set of rules, which are plainly reasonable in addressing the risks, will help to deal with any pushback from staff who, for example, were to take issue with a rule requiring them to continue to masks, or take tests in certain situations. If you would like advice on next steps, or concerns about enforcing your business’s rules, please do get in touch.