The return to work naturally has caused angst across numerous businesses; the fear of the unknown in the midst of coronavirus is something everyone is trying to manage with both care and caution. However, when there is so much fake news being churned out, it is essential that you understand what is required of you as an employer. That is why we reached out to employment lawyer and Partner of Duane Morris,Nic Hart who shares with us the ten truths that you need to know when returning to work in the time of coronavirus.
1. FFS the flexi furlough scheme is here. Your workers can be switched on and off as required.
As long as the particular employee was furloughed on the original scheme for a minimum period of three weeks before the tenth of June they can be moved on to the flexible furlough scheme. The advantage of this is that you may utilise their labour in blocks that suit entirely the operational requirement of the employer. Any claim must now be in respect of a minimum one week period regardless of how many days may have been worked in this one week period. There are further rules regarding the “claim periods” and the payroll calculations may prove challenging but it will allow for the ability to phase employees back into work as required. We recommend that you utilise a flexible furlough scheme agreement with your employees even if they have previously had a furlough scheme agreement.
2. The employer must set up a system of safe work and implement it.
The overall position remains regulated by the Health and Safety at Work Act 1974. You will be aware that a breach of the duty to ensure the health and safety of your employees at work is a criminal offence. That duty encapsulates the requirement, where reasonably practicable, to ensure that your employees are not infected with COVID-19 whilst at work. You must follow the Government Guidance applicable to your sector to demonstrate that you are fulfilling the duty under the act. The duty is not necessarily fulfilled by following the guidance but it will be good evidence that you have sought to comply with your obligations.
The Health and Safety Executive have also provided further guidance which employers should follow to further ensure they make their work and workplace as COVID safe as possible.
It is critical that you implement, monitor and enforce the safe system. It is not enough to rely upon your employees to carry out the safe systems of work, for example post bathroom and pre re-entry to work space, washing and sanitisation.
3. The employer must make a COVID 19 risk assessment tailored to its work place and the dangers of coronavirus and set up a safe system of work identified by that risk assessment, and make sure that the safe system is followed.
The first step on the Government Guidance 5 steps to working safely is that before employers restart work they should ensure the safety of the workplace by carrying out a COVID-19 risk assessment in line with the Health and Safety Executive.
The Health and Safety Executive offer advice and guidance to help employers create and implement a COVID-19 risk assessment but each industry will have specific requirements. It should also be noted that each workplace will have different groups of employees who may require extra health and safety measures and this should also be addressed in the risk assessment but be mindful of indirectly or directly discriminating against any group.
For those businesses who are almost exclusively home working and planning on continuing to do so then a risk assessment should still be carried out but concentrate on the risks of homeworking. You are strongly advised to take specialist and specific advice on the risk assessment itself and the implementation and enforcement of that risk assessment.
It should be noted that the Government expects all employers with over 50 employees to share the results of the risk assessment with your workforce and on your website. Whilst this is not a statutory requirement this should be considered as it demonstrates best practice and reassures any nervous returners of the steps the employer is taking.
4. If social distancing cannot be followed at work in full then those operations and activities should only be continued if they are necessary for the business to operate.
The Prime Minister announced this week that the two-metre social distancing rule will be relaxed such that in circumstances where it is not possible to keep two metres apart, one metre will be acceptable as long as other measures are put in place to limit the transmission. Employers should still consider whether to maintain two meter distancing, if practicable, to further limit transmission of the virus and to demonstrate their observance of the duty to maintain health and safety at work. Please note that the social distancing rules are different in England, Scotland, Ireland and Wales.
5. The employer must consult either a Trade Union safety representative or an employee appointed safety representative about change in work practices in respect of health and safety when people return to work.
Employershave a statutory requirement to consult either employees or their elected representatives about health and safety, in particular where there are new measures being introduced that could affect their health and safety, for example new measures implemented following Government Guidance and highlighted in COVID 19 Risk Assessments.
You should now check your current health and safety policy to see what steps you have to take to consult and engage with employees. This may be more challenging with employees home working or on furlough but employers should consider a new approach such as Zoom, online employee survey tools, or any other platform that has proven effective whilst remote working or communicating with furloughed employees.
Government Guidance has made clear HMRC will not regard the duties and activities of employee representatives as “work”, as long as the representatives do not provide services to or generate revenue for or on behalf of your organisation or a linked or associated organisation. It could be argued that acting as a health and safety representative may be considered work so avoid any risk the FFS can be used (for currently furloughed employees) to allow employees to undertake their health and safety duties.
6. The employer must plan and implement strategies to reduce the risk from Infected People and to Vulnerable People, Control of Aerosol Infection and Control of Contact Infection.
Public Health England has advised that the transmission of COVID-19 is thought to occur mainly through respiratory droplets generated by coughing and sneezing, and through contact with contaminated surfaces. The predominant modes of transmission are assumed to be droplet and contact. This is consistent with a recent review of modes of transmission of COVID-19 by the World Health Organization (WHO).
Government Guidance has advised the following for employers returning workers to the workplace;
Where possible, you should maintain 2m between people by:
· putting up signs to remind workers and visitors of social distancing guidance
· avoiding sharing workstations
· using floor tape or paint to mark areas to help people keep to a 2m distance
· arranging one-way traffic through the workplace if possible
· switching to seeing visitors by appointment only if possible
Where it’s not possible for people to be 2m apart, you should do everything practical to manage the transmission risk by:
· considering whether an activity needs to continue for the business to operate
· keeping the activity time involved as short as possible
· using screens or barriers to separate people from each other
· using back-to-back or side-to-side working whenever possible
· staggering arrival and departure times
· reducing the number of people each person has contact with by using ‘fixed teams or partnering’
Further protection against transmission will depend on the business the employer operates. When managing the risks of COVID-19 additional PPE beyond what is usually worn will not be beneficial in the majority of workplaces.
For those businesses providing a service which involves close proximity to a person’s face, mouth and nose further protection may be required in addition to any that is usually worn, such as a clear visor that covers the face and provides a barrier between the wearer and the client from respiratory droplets caused by sneezing, coughing or speaking.
The Government Guidance states that the most effective methods of preventing the transmission of COVID-19 are still social distancing and regular handwashing and that these steps must still be followed as much as possible, even when practitioners are wearing protective equipment.
7. An employer must report if an employee contracts COVID 19, and further report if the employee dies, as a result of occupational exposure.
An employer has to report if an employee contracts COVID-19 (and further report if the employee dies) as a result of occupational exposure.
COVID-19 is a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR). RIDDOR places reporting obligations on employers in certain circumstances. For the coronavirus emergency, the obligation is to report the release o COVID-19 virus (say in a laboratory setting) or the contracting of COVID-19 and further to report any death from COVID-19.
In the case of employees, the reporting obligation is only ever triggered if the contracting of the disease or the death is because of occupational exposure. This is done on a “reasonable evidence” basis. This is particularly difficult with COVID-19 as the employee may have encountered the virus other than at work and the exposure at work may not, actually, have caused the disease.
The Health and Safety Executive does not require, as it normally does, a registered medical practitioner’s diagnosis in writing that the person is suffering from COVID-19 when reporting. However, the position is different with a death certificate where the certified cause / causes of death will be relevant.
It should not be overlooked that under the Health and Safety at Work etc. Act 1974, it is a criminal offence to fail to complete a RIDDOR form in circumstances where such a form is to be completed.
8. Collective redundancy consultation can take place (probably) when employees are furloughed and immediately when that furlough ends.
There has been debate over whether collective redundancy consultation can take place when employees are on furlough. The first issue was whether employees would be considered to be working when they are being consulted such that this breaks furlough.
The present Treasury Direction requires that employees undertake no work at all. However, HMRC’s Guidance on the Job Retention Scheme says that an employee can be made redundant while on furlough and that furloughed employees may work as union or non-union rep representatives which suggests that consultation can occur while employees are on furlough. The Guidance further states only that employees cannot be asked to do work that makes money for the employer or provides services to the employer. Whilst consulting employees will not be making money there is a debate whether the employee is providing a service to the employer. The counter argument to this is that the representatives are providing a service to the employees and not the employer.
If there is any concern then employers could consider using the flexible furlough scheme for representatives (if eligible).
9. Extremely clinically vulnerable people cannot be compelled to return to the work place.
Shielding measures are still in place for extremely clinically vulnerable person until August 1st. If an employee who is classed as extremely clinically vulnerable wants to continue to shield at home – either because of government advice or because there is no vaccine for the virus available – then it is likely that any insistence on their returning to work may lead to potential claims under health and safety legislation and of discrimination.
Returning to the workplace may involve contact with people who are carriers of COVID-19 (“the virus”), which places employees in danger of being infected. The effects of the virus are likely to impact extremely clinically vulnerable person more severely than others. A right to refuse to return to work under the Health and Safety Regulations are more likely to be reasonable because for employees who are classed as an extremely vulnerable person.
Further, under the Equality Act 2010 an employer has an obligation not to discriminate against a disabled employee by subjecting them to a detriment and/or dismissing them. Requiring an extremely vulnerable person to attend work may be subjecting them to a detriment.
Reasonable steps an employer can take to avoid subjecting them to a detriment could be allowing them to work from home in their existing post; transferring them to another job which might be capable of being done at home; or where the former are not possible, allowing them to remain at home.
10. Avoiding discrimination in the return to work
Whilst there is still no vaccine or cure for COVID-19 there is a very real risk in returning some groups of employees to the workplace. It is important that any return to work plans being considered do not disadvantage certain protected groups.
As more information about the effects of COVID-19 on individuals has been gathered, reports have been made regarding the severity of impact based on age, ethnicity and gender. This requires employers to balance the effects of returning employees to the workplace and ensuring they are not directly or indirectly discriminating against any group, particularly when dealing with those who may require greater protection.
Shielding individuals are classified as extremely clinically vulnerable and will be more severely impacted by COVID-19. These employees may also qualify as disabled within the meaning of the Equality Act so you must consider what reasonable adjustments can be made such as homeworking or alternative duties.
On a practical level you must consider whether matters such as changes to access or movement around the work space will affect employees with a disability or whether changes in working hours/ patterns, to comply with social distancing, will subject any group to direct or indirect discrimination ie those with primary care responsibilities.
It is critical that Employers keep up to date with government guidance and keep any medical evidence that is used in making any decisions or considering what adjustments could be made. You can only justify potentially discriminatory impact if it can be demonstrated that any proposed plans are a proportionate means of achieving a legitimate aim considering all the circumstances.
And lets turn it up to eleven…
11. An employer can probably force a worker to take a COVID-19 test if such tests become more widely available and consensus cannot be reached.
There is no requirement in the Government Guidance that an employer must ask an employee to undertake a COVID-19 test. The Employer must show it is a proportionate requirement to demonstrate a duty of care and statutory health and safety responsibilities towards their employees. This may be variable depending on the industry and ways of working in the workplace.
Collecting health information for the purposes of complying with health and safety duties brings further obligations for data protection as personal data that relates to health is classed as‘special category data’ and must be even more carefully protected.
With regard to any information obtained through testing you need to comply with the GDPR and the Data Protection Act 2018 which means handling this information lawfully, fairly and transparently. The Information Commissioner’s Office (ICO) has issued clear and practical guidance on the steps an employer must take to be compliant with data protection law in light of COVID-19 and states that data protection law “does not prevent you from taking the necessary steps to keep your staff and the public safe and supported during the present public health emergency. But it does require you to be responsible with people’s personal data and ensure it is handled with care.”
By Nic Hart, Partner at Duane Morris
