By Mark Callaghan - 29 July 2021
Below we address the health and safety concerns and queries employers must consider when making the workplace "COVID-secure". This covers the employers health and safety obligations, risk assessments, workplace adjustments and health testing of employees. We highlight questions as *UPDATED* where guidance has significantly changed.
1) *UPDATED* What are the key health and safety obligations employers need to consider as they plan to reopen workplaces?
Employers have duties under both the common law and statute as imposed by the Health and Safety at Work Act 1974 (“HSWA”) and various other regulations. The common law requires employers to exercise “reasonable care”, whilst the HSWA imposes a duty to ensure the health, safety and welfare at work of employees, so far as is “reasonably practicable”.
For an employer to meet these thresholds in the context of the COVID-19 pandemic, the starting point should be the government’s ‘Working Safely During Coronavirus’ guidance, most recently updated on 14 July 2021, which is now comprised of 6 specific industry guidance papers (collectively, the “guidance”).
The guidance is not mandatory and is not a fail-safe blueprint to ensure compliance with the HSWA. However, it does represent the practical minimum that most employers should consider implementing, in current circumstances.
The guidance previously suggested an approach to making workplaces “COVID-19 secure” which emphasised, amongst other things, the need to implement social distancing where possible.
In the latest iteration of the guidance, released to coincide with the removal of all Covid restrictions in England, references to Covid-secure workplaces and the previous emphasis on social distancing have been removed (although the guidance does still suggest that employers may wish to use ‘fixed teams or partnering’ or ‘cohorting’ in order to reduce the number of people each person has contact with).
Instead, 6 ‘Priority Actions’ have been established; accordingly, employers should:
The detailed industry guidance papers provide useful additional steer on the mitigation steps that an employer should consider implementing in the workplace. They also consider the question of personal protective equipment (PPE) in the context of the pandemic, which is discussed further below.
2) *UPDATED* What risks do employers face if they breach those obligations?
It is a criminal offence to breach several of the HSWA’s key provisions, including the requirement to take reasonably practicable steps to ensure employee health and safety. This criminal liability can attach to the employer entity, but it can also attach to any director, manager, secretary or other similar officer who is involved in the breach. When tried in the Crown Court, fines are theoretically unlimited and sentences of imprisonment can be for up to 2 years.
It is worth noting that the designated enforcing authorities have other powers – including issuing improvement and prohibition notices – to influence behaviour without resorting to criminal prosecution. The Health and Safety Executive (“HSE”) have said they will “continue to take proportionate account of the risks and challenges arising from the pandemic”.
Employers should not forget the potential civil liability following health and safety failures; employees may seek to bring claims for negligence, or for automatic unfair dismissal.
The guidance is exactly that: guidance. A failure to follow one of its recommendations does not mean that an employer is in breach of its health and safety duties. However practically speaking, a failure to give due consideration to that guidance may be indicative of an employer which has not met its HSWA obligations.
3) *UPDATED* How should employers carry out COVID-19 risk assessments?
Existing regulations already impose a duty on employers to conduct “suitable and sufficient” risk assessments and to update them following significant changes.
The purpose of a risk assessment is to identify the hazards faced by the workforce, decide who might be harmed and how, evaluate the risks, and decide on precautions. The assessment should be detailed and considered; it is not a ‘high level’ document. It should be in writing for all but the very smallest of employers.
The guidance previously stated that employers should carry out a dedicated risk assessment of the risks posed by COVID-19 “as soon as possible”. Now, the guidance clearly anticipates that any “currently operating” organisations will already have an assessment in place, and the guidance is designed to help employers “identify any adjustments or further improvements” that need to be made. In this regard, employers who are reviewing and updating their assessments may wish to note the increased emphasis on ensuring workplaces are well ventilated, and the reduced emphasis on social distancing in the guidance.
The government has said that it “expects” employers with more than 50 employees to publish the results of their dedicated COVID-19 risk assessment (which need not be the full document, but should be at least a summary of its conclusions) on their website.
4) *UPDATED* Do employers have to consult with their staff on risk assessments/workplace risks?
Yes, employers are under a specific duty to consult with the workforce (or union reps, if in place) on various matters including the introduction of new measures affecting the health and safety of employees “in good time”. In the current climate, and in light of the updated guidance, employers should be evaluating and re-considering their assessments regularly, as government guidance changes and if the status of the pandemic changes again (for example if further waves occur, or a new vaccine-evasive variant is identified) or as a greater proportion of the population becomes vaccinated).
Employers should consider, as part of their consultation process, putting in place a feedback loop to encourage ongoing input from employees into the measures, particularly whilst staff adapt to their modified workplaces.
5) *UPDATED* What sort of workplace adjustments might be sensible for office-based employers?
The preventative measures that will be appropriate in response to COVID-19 will vary from office to office and will be informed by the dedicated risk assessment.
The dedicated Government Guidance for Offices, Factories and Labs provides a useful set of preventative measures for employers to consider. Some arrangements that may be appropriate in an office environment (many of which are specifically identified in the guidance) include:
6) *UPDATED* Should employers require staff to wear face coverings in the workplace?
In most offices, face masks and PPE are probably not required, but employers may wish to give staff the option to wear them if they wish.
However, the guidance does state that the government “expects and recommends” that people continue to wear face coverings in “crowded, enclosed spaces” (described, unhelpfully, elsewhere in the guidance as “crowded and enclosed” spaces, leaving some ambiguity as to whether a space should be both enclosed and crowded, or just one or the other, for this recommendation to apply). This may, in some office settings, require some consideration as to whether face coverings should be recommended in communal spaces or particularly crowded areas such as lifts or toilets. The sensible approach is to consider the particular risks posed in your workplace and make a decision with those risks and your HSWA obligations in mind.
If your health and safety assessment concludes that that face coverings are required in some areas of the workplace, then there is a chance that employees will object, particularly on the basis that the wearing of masks has become somewhat emblematic in the wider societal debate about the appropriate response to the pandemic. An employer’s decision to require face coverings (and, therefore, any subsequent disciplinary action that it takes against employees who refuse) that is rooted in a thorough risk assessment that has been subject to employee consultation will be more defensible, from a legal perspective, than one that is not (which is not to say that there may be other justifiable reasons to require them).
If a requirement to wear masks is introduced, then you should consider what adjustments would be reasonable for employees with disabilities. Conversely, it might be a reasonable adjustment to expect your employees to wear masks when particularly vulnerable employees attend the workplace, even if your health and safety assessment concludes that they are not necessary for the rest of the time.
More extensive PPE should be provided if the risk assessment concludes that it is required, but the guidance confirms that it will rarely be required as a precautionary measure outside of clinical settings or in response to confirmed cases of Covid-19.
7) Can employers require staff to submit to health testing?
The main concern here is likely to be one concerning data protection, which is addressed in much more detail here.
8) *UPDATED* What should employers do if someone reports that they are displaying symptoms?
If an employee displays any new symptoms of COVID-19 then the existing guidance requiring them to remain at home and self-isolate will apply. They should remain at home for at least 10 days from when the symptoms started, unless they receive a negative PCR test result during that period, and for longer if they continue to have a high temperature. Household members are also required to remain at home for 10 days, starting with the day after which the first person displayed symptoms.
The guidance provides extensive guidance on how to ensure that workplaces are kept clean, both before reopening and once operations have resumed. It also refers to and links to the existing specific guidance on how to clean an area after someone with suspected COVID-19 has been present.
Employers will be concerned about whether they are able to inform their workforce of the fact that an employee has COVID-19 symptoms. For further information, see our return to work data protection article.
See here for a quick-view checklist to help employers follow all of the key health and safety steps.
If you or your organisation would like more information about employees returning to work, please get in touch with your usual GQ|Littler contact or email firstname.lastname@example.org.
This information provided by GQ|Littler is for general information purposes only. The information presented is not legal advice and should not be used as a substitute for taking legal advice in any specific situation. Although this information summarises some major recent developments, it is not all inclusive and it may be subject to change as circumstances develop.