COVID-19 advice for employers: managing a safe return to work

09 August 2021

From July 19th, all remaining COVID restrictions in England have been lifted, while Scotland has moved to Level 0 and Wales are in Alert Level 1. But with the easing of restrictions came a new challenge as swathes of people were forced to isolate in what’s being aptly called the “pingdemic”.  As businesses work towards further re-opening amidst a sharp rise in cases, employers are struggling to implement plans for a smooth return to the workplace.

Although the legal obligation to work from home (or “WFH’) has now ended, the government have advised that those who can work from home should continue to do so over the summer where possible. As per the government’s Working Safely guidance, employers can take precautions to manage risk while continuing to support their staff and customers.  A phased return is recommended, but what does that look like in practice?

As we continue to work closely with our clients through this period of uncertainty, it’s clear that businesses sector-wide are experiencing significant disruption. In the following blog, we cover employers’ health and safety obligations, contact tracing and adjusting hours and responsibilities in line with government guidance.

What are the current COVID restrictions?

At present, only a few restrictions remain in place. These include:

  • Self-isolation for those who test positive for coronavirus
  • Self-isolation for those in contact with someone who tests positive / has been “pinged” by the NHS contact tracing app. This rule will be in place until 16 August; after this date, under 18s and those who have received both doses of the vaccine at least 10 days before the contact will no longer need to isolate
  • Border restrictions dependent on the status of the country
  • Mask wearing is now voluntary, but certain businesses such as airlines and retailers have indicated that face coverings will still be required.

While it’s perfectly understandable that many organisations are eager to get back to “business as usual”, following statutory health and safety requirements remains essential.

Should every office-based employee in England work from home?

With the official restrictions lifted, the onus will ultimately be on employers to determine whether or not it is necessary for employees to work in the office. Many will continue to keep staff working remotely to prevent employees from becoming ill and suffering more disruption from sick leave, while others may choose to take a blended approach that sees staff working from home for the majority of the time but coming to the office for key client meetings or social events.  In any case, this should be managed carefully, and the safety of employees should be prioritised.

To support employers, the government issued six pieces of guidance for several sectors to cover best practice within various working environments. According to the guidance for Offices, Factories and Labs, extra consideration should be given to people at higher risk and those who have physical and/or mental health issues. While those who are clinically vulnerable no longer need to shield, you should still support these workers to the best of your ability by taking into account their individual needs and discussing with them additional measures or precautions that could be implemented to encourage their safe return to the office.

What does an employer need to do to ensure the workplace is Covid-19 secure?

WFH may not be a legal requirement, but employers still have a duty to carry out risk assessments and take the necessary steps to mitigate risk. The government recommend that a Covid-19 risk assessment should:

  • identify what work activity could lead to transmission of the virus
  • consider who will be at the highest risk of serious illness
  • consider how likely it is that someone could be exposed to the virus
  • act to remove the activity, or if this isn’t possible, control the risk.

Once a risk assessment has been undertaken, you should then work with heads of department to control the spread of the virus and put in place policies to help protect your staff. This could include social distancing between work stations, reducing face to face meetings or limiting the number of people required in meetings.

Employers should also consider improving ventilation as fresh air can be helpful in reducing the transmission of the virus.  Whether fully remote or temporarily hybrid, the model you choose to implement should reflect the needs of those who might be affected the most.

Can employees refuse to return to work?

Ultimately, whether or not an employer can “force” an employee to return to work will depend on the type of work and the individual’s personal circumstances. According to government guidance, those who cannot work from home (i.e., cannot perform their duties while working remotely) should continue to travel to work.

It’s likely that more employers will see more staff refusing to come to the office, which is understandable considering the rise in infections from the Delta variant. Employees may cite section 44 of Employment Rights Act which protects them against detrimental treatment if they leave work in a situation of serious and imminent danger; they may argue that it would only be safe for them to return to work after having received two doses of the vaccine.

The law does protect employees from detriment if they reasonably believe that doing so will put them at risk of harm. These concerns should be taken seriously, but equally, employers should engage their staff as to whether further action needs to be taken to ensure safety in the workplace. If an employee still refuses to return to the workplace after measures have been put in place accordingly, the employer could in theory commence disciplinary proceedings, but we recommend seeking legal advice before taking action of this kind.

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