On 10 May 2020, the UK Government outlined its plans to enable certain sectors in England to return to work amid the COVID-19 pandemic. The devolved administrations in Scotland, Wales and Northern Ireland have continued the period of lockdown. In any event, employers must plan ahead to reopen workplaces safely and in compliance with ever-changing laws and regulations. Employers should become familiar with guidance published by, among others, the UK Government, relevant national health departments (e.g. Public Health England), and the Health and Safety Executive, in addition to any relevant sector-specific bodies (such as trade associations or trade unions) and professional organisations.
Make a Plan to Reopen Safely, and Plan to Share It
Health and safety and employment laws in the UK require employers to protect the health, safety and welfare of their employees and other people who might be affected by their business. Employers must do whatever is reasonably practicable to achieve this.
- Even though it remains the Government’s guidance that businesses and workplaces should make every possible effort to enable working from home as a first option, given that the timing and nature of any future relaxation of restrictions is uncertain, employers should consider how they can bring their workforces back into the normal working environment safely. These considerations are clearly more urgent for businesses where working from home is not possible, and, as these businesses are now being encouraged to return to work, such a plan to reopen safely is now critical.
- Employers will need to assess how they can operate safely during the COVID-19 pandemic, which will include assessing, for example, what social distancing measures can be implemented (to ensure employees remain two metres apart from each other), if shift-patterns can be staggered, what additional handwashing facilities can be provided, and how to effectively communicate with workers to help them stay safe.
- It will be essential for employers to carry out this risk assessment and employers are encouraged to share the results of the assessment with their employees. The Government’s guidance states that, although not legally required, there is an expectation that all employers with 50 or more employees and workers publish the results of its risk assessment on the company’s website.
- Employers must consult on health and safety measures with the health and safety representative selected by a recognised trade union or, if there is no such representative, a representative chosen by employees.
- Employers must do whatever is reasonably practicable to ensure that employees have a safe place to work. When determining what is reasonably practicable, the sacrifice employers incur in terms of time, cost and effort should be proportionate to the risk. The risk of harm is high in these circumstances; the sacrifice expected from employers will therefore also likely be considerable.
The Government recommends that it is good practice for all employers to:
- keep everyone updated on actions being taken to reduce risks of exposure to COVID-19 in the workplace;
- ensure employees who are in a vulnerable group are strongly advised to follow social distancing guidance;
- ensure employees who are in an extremely vulnerable group and should be shielded are supported to stay at home;
- make sure everyone’s contact numbers and emergency contact details are up to date;
- make sure managers know how to spot symptoms of COVID-19 and are clear on any relevant processes, for example sickness reporting and sick pay, and procedures in case someone in the workplace is potentially infected and needs to take the appropriate action;
- make sure there are places to wash hands for 20 seconds with soap and water, and encourage everyone to do so regularly; and
- provide hand sanitiser and tissues for staff, and encourage them to use them.
Adapt the workplace to implement social distancing
- Employee scheduling changes Consider shift working or the staggering of processes that would enable staff to continue to operate effectively and, where possible, maintain social distancing. Practically, this may include splitting staff into teams with alternate days working from home (where possible), and, if staff are split into teams, arrange these where possible so that interactions are limited.
- Enhance support for continued working from home Ensure compliance and cybersecurity procedures are up to date. Provide IT training and support to ensure that working from home is both effective and secure. Provide additional support to managers in using technology to manage teams remotely. Review the recent remote working experience to determine areas of improvement for sustaining business operations on a remote basis.
- Physical modifications Use or install physical controls to reduce contact, such as screens or barriers to separate people from each other. Where possible, modify workstations for back-to-back or side-to-side working. Evaluate the floor plan to determine how to create adequate social distancing between employees and visitors. Consider using markings and introducing a one-way system at entry and exit points and other areas of high-traffic. Evaluate the air and ventilation systems to lessen the risk that the virus spreads because of how air circulates around the workplace. Review entry/exit points and whether turnstiles using touch-based security can be deactivated in favour of showing a pass to security personnel at a safe distance.
- Limiting physical contact & in-person interactions Encourage the use of digital and remote interactions and transfers of material where possible rather than in-person or paper format, such as using video-conferencing, emails and e-banking. Stagger arrival and departure times to reduce crowding, taking account of the impact of those with protected characteristics. Regulate entry so that the premises does not become overcrowded. Consider limiting how staff canteens, rest areas and other common areas or enclosed areas may be used. Determine whether visitors to the workplace will be permitted and under what circumstances, keeping in mind that the Government is advising that visitors should not come to the workplace unless this is necessary. If this is necessary, measures should be put in place to reduce the risk in line with UK Government guidance including maintaining a two metre distance, providing hand sanitiser, and holding meetings in a well ventilated room.
- Consider changes to travel policies Implement or update the Company’s travel policies consistent with guidance on nonessential travel, but consider remote options first. Consider whether personal travel will be monitored and whether quarantine procedures will apply upon return. If work-related travel is necessary, consider implementing policies that minimise the number of people traveling together in any one vehicle, use fixed travel partners, and where workers are required to stay away from home, make sure that any overnight accommodation meets social distancing guidelines.
- Train employees & managers on social distancing protocols in advance If employees are currently working remotely, before the return to the workplace, provide remote training to employees on the company’s social distancing expectations and ensure employees know where to go with complaints. Ensure that managers understand the disciplinary process for employees who violate these policies. Develop a disciplinary process if one is required.
- Prevent discrimination and harassment Consider whether any particular measures or adjustments to take account of the requirements under equalities legislation need to be put in place. Remind employees that discrimination and being treated unfairly are prohibited and reporting procedures are in place. Review and refresh policies and trainings. Train managers on responding to discriminatory comments regarding COVID-19 and members of certain races, ethnicities or national origins.
Implement safety & cleanliness measures
- Follow the latest guidance Consult guidance from all relevant sources on current standards and best practices.
- Increase cleaning procedures Clean “high-touch” objects and surfaces more frequently, and consider limiting the number of employees who use such objects. Eliminate sharing of electronics, desks and workspaces. Where employees are in the office, cleaning should be carried out every evening, and any cleaning between shifts should be in addition to daily cleaning.
- Face coverings & PPE procedures Determine whether employees and visitors will be required to wear face coverings and/or personal protective equipment (PPE) (noting that current guidance provides that workplaces should not encourage the precautionary use of extra PPE outside clinical settings or when responding to suspected or confirmed cases of COVID-19). If required, determine how it will be provided (or if permitted, reimbursed). If optional, determine whether any “dress code” needs to be established. In the event employees wear face coverings in the workplace, employers are advised to provide information on how to do this safely, including washing or disposing of the face covering regularly and continuing to practice other preventative measures in conjunction (e.g. washing hands and practising social distancing measures).
- Empower employees to prevent the spread of COVID-19 Provide clear, consistent and regular communication to improve understanding and consistency of ways of working. Engage with workers and worker representatives through existing communication routes to explain and agree any changes in working arrangements. Develop communication and training materials for workers prior to returning to site, especially, for example, around new procedures for arrival at work.
- Consider alternatives to employees using public transportation Evaluate whether the use of public transport to commute to work may impact employees’ ability to safely return to work, and whether any alternatives are available. If no alternatives exist, consider staggering on-premises hours to reduce public transport use during peak periods. Consider whether there is space to provide additional parking or facilities such as bike-racks to help people walk, run, or cycle to work where possible.
- Develop enforcement policy & avenues for reporting Ensure that managers understand the disciplinary process for employees who violate these policies, other than pursuant to agreed reasonable adjustments, and that employees know how to report safety concerns.
- Promptly address safety concerns Ensure that there is a clear process for employees to raise health and safety concerns, and maintain records of the complaint and the company’s response. Health and safety laws provide that a person who makes a disclosure in the prescribed manner is protected.
Adopt screening protocols for employees & visitors
- Symptom screening Companies should ensure that managers are made aware of how to identify symptoms in staff and of procedures to follow in the event a staff member exhibits symptoms. Consider whether to ask all employees and visitors questions about COVID-19 symptoms, such as “Are you experiencing any of the following symptoms of COVID-19: cough, fever, a loss, or change, in your normal sense of taste and smell, etc.?” Consider how frequently these questions will be asked or whether an employee will be obligated to update if symptoms occur. Personal information obtained in relation to such questions, will need to be dealt with in accordance with relevant data protection laws. It is important to bear in mind that these laws, and the associated regulatory guidance, are not consistent across the EU. Consequently, any UK business with operations in the EU will need to consider applicable local guidance separately. As an alternative, businesses may prefer to direct that employees and visitors not enter the workplace if they display symptoms of COVID-19. Consider adopting leave policies that encourage employees displaying symptoms of COVID-19 to stay at home.
- Temperature checks Consider whether it is appropriate and justifiable to perform temperature checks for all employees and visitors before they enter the workplace. Consider undertaking a data protection impact assessment prior to performing temperature checks to identify and address the data protection issues associated with collecting such information. Check the terms of the employee’s contract, update personnel and visitor privacy notices, and make sure all data protection laws are otherwise complied with.
- COVID-19 testing Evaluate whether company-paid COVID-19 testing is advisable and under what circumstances. Clear and transparent communication with employees will be critical. Consider logistics, including what type of test, who will conduct the test, who will be tested (only individuals with symptoms?), how often tests will be performed, and how test results will be maintained in accordance with data protection laws.
- Antibody testing It is possible that once improved testing is available that antibody testing might be considered. Again, clear and transparent communication with employees will be critical. Test results will need to be maintained in accordance with data protection laws.
Our data protection team have set out an overview of some of the key issues for organisations in the UK to consider during this crisis, from an EU data protection compliance perspective, that can be found here.
Plan to deal with potential new COVID-19 infections consistent with Government guidance
- Plan to address workplace exposure If someone develops COVID-19 symptoms in the business or workplace they should be sent home and advised to follow the ‘stay at home’ guidance. If a member of staff lives in a household where someone else is unwell with symptoms of COVID-19, then they must also stay at home. Establish a procedure that details the company’s response if an employee or a member of an employee’s household feels sick, including to whom the employee should report symptoms or a positive test, ensuring confidentiality of employee health information, how potentially impacted employees will be notified (while maintaining confidentiality), what self-quarantine procedures will be followed, procedures for closure and disinfection of the area consistent with current guidance, and policies regarding when affected employees will be able to return to work.
- Record and report workplace exposure Evaluate the company’s reporting obligations in respect of someone’s exposure (or suspected exposure) to COVID-19, such as under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013.
Develop a communication plan around plans to reopen
Communicate with employees about the planned return
- Set out the timeline; explain the safety plan and identify steps taken to date, and provide remote training to employees and managers on return to work expectations and procedures. It will be important to have a re-orientation or re-induction process for returning staff.
- Clearly communicate leave, working from home and flexible working policies; consider adopting new temporary policies with additional flexibility during the phased re-entry period.
- Provide updates to the safety plan as conditions change. Request feedback about the return-to-work process and incorporate it as the plan evolves.
- Remind employees of employee assistance programmes and other benefits. Communicate that the company’s compliance policies and procedures are still in place and ensure that employees are aware of compliance resources.
- The public health and economic situation is frequently changing; answer employee questions with the current approach and regularly update employees as to changes in the safety plan and changes in company strategy and outlook.
Communicate with customers and clients about new social distancing and safety measures
- Share how products and services will be delivered in new and safer ways.
- If masks or symptom screenings will be required for visitors, develop a plan to notify visitors in advance.
Ensure that workplace policies & procedures reflect new conditions
The workplace that employees are returning to is different from the one they left, and the transition back to the traditional workplace may need to be a gradual one.
Ensure that employees’ return to work meets all legal requirements
- All decisions should be made on a non-discriminatory basis Ensure that managers do not make employment decisions related to returning to work based on discriminatory factors or gender, racial, age, or other protected characteristics, or make decisions that result in a disparate impact on certain employee populations. Employers should ensure that return-to workplace policies treat caregivers equitably and that well-meaning supervisors do not exclude workers with childcare or other family responsibilities from important work opportunities.
- Furloughed employees In determining which employees should return from furlough first, identify which employees perform essential business and operational functions, site facility management, or regulatory requirements. Consider individual personal circumstances and remember not to use discriminatory criteria. Reach out to furloughed employees at least a week in advance of the proposed end of furlough in order to gauge interest and prepare for the return to work.
- Changes in contractual terms Consider what terms the returning worker will return on and if any contractual amendments will be required.
- Payroll Ensure that payroll is correctly set up for the return of furloughed workers and that they will receive the correct pay from day one of the return.
Update or create policies to address special circumstances
- Vulnerable employees Clinically extremely vulnerable individuals have been strongly advised not to work outside the home and clinically vulnerable individuals, who are at higher risk of severe illness, have been asked to take extra care in observing social distancing and should be helped to work from home, either in their current role or in an alternative role. If clinically vulnerable (but not clinically extremely vulnerable) individuals cannot work from home, they should be offered the option of the safest available on-site roles, enabling them to stay two metres away from others. You should assess whether a role involves an acceptable level of risk where such a person would have to spend time within two metres of others. Particular attention should also be paid to people who live with clinically extremely vulnerable individuals.
- Maintain flexibility to accommodate other employees Older employees and employees with childcare or other dependent responsibilities may have similar needs for accommodation, which may be provided as a best practice in ensuring the safety of everyone in the workplace and stopping the spread of COVID-19. Employers should be mindful of the particular needs of different groups of workers or individuals. Ensure that any steps taken do not have an unjustifiable negative impact on some groups compared to others, such as those with caring responsibilities or those with religious commitments.
- Employees who fear returning to work Understand that many employees may be apprehensive about returning to the workplace as the pandemic continues, and employers should be prepared to engage with employees to address these concerns and elicit whether appropriate adjustments are required under company policies or otherwise advisable under the circumstances. Some employees may have concerns about travelling and social distancing on public transport, many might find that they are still adjusting to significant societal changes, and the familiar work routines could feel very different. Managers should consider having a sensitive and open discussion with all employees and discuss any adjustments and/or ongoing support to facilitate an effective return.
- Develop a legally compliant procedure for employees to seek adjustments Prepare a response for requests for continued remote work and other adjustments based on the essential functions of the job, not based on discriminatory factors or the personal preferences of line managers. Employers should not make decisions or adopt blanket rules about who can return to work based on a protected characteristic, such as age or a known or suspected disability or health condition. Employers can, however, encourage workers to self-identify (without requiring detailed information) if they have special circumstances or vulnerabilities that may require accommodation or consideration in the return-to-workplace process. In each case, the approach should be specific and not based on assumptions about the employee.
Update policies to reflect expanded availability of flexible and remote working, new leave policies, and other changes
- Employers may either allow or require some employees to continue working remotely due to safety concerns or to reduce the costs of operating an office.
- Update policies to reflect the full range of leave options available to employees, and ensure that managers are familiar with new leave policies. Employees may be entitled to paid sick leave, for example.
- Update HR policies and procedures. Evaluate what hiring, onboarding & training processes will need to change in order to ensure social distancing. Evaluate whether the benefits offering needs to be amended to reflect the new normal.
Plan for the future
- Plan for the next closure While it is not a welcome thought, the workplace may need to close again in the near or long term due to COVID-19 or other health emergencies or due to natural disasters or other adverse events. Update the company’s business continuity plan based on lessons learned from the recent experience of closing on relatively short notice, and plan ahead for future closings.
- Update succession plans Identify successors in the event any HR or management team member is sidelined.
- Vaccines Consider whether to require (and, if permissible to require) or provide vaccinations once a vaccine is available.
Jonathan Crookham (White & Case, Associate, London) contributed to the development of this publication.