By Mark Callaghan - 27 November 2020
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 26 November, together with the 8 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 suggests an approach to making workplaces “COVID-19 secure” which urges that 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 risk assessments and personal protective equipment (PPE) in the context of the pandemic. Both of these issues are 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.
Since 28 September, it has also been against the law for a business to require a self-isolating employee to come to work.
3) How should employers carry out COVID-19 risk assessments?
The guidance stresses that employers should carry out a dedicated risk assessment of the risks posed by COVID-19 “as soon as possible”, and the clear expectation is that this will be done before returning staff to the workplace. 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 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) 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, employers should be evaluating and re-considering their assessments continually, as more details and guidance about the pandemic are released and as the pandemic risk potentially evolves (or hopefully declines). 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) 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. As set out above, the expectation is that employees will be required to remain socially distant at work, to the extent possible.
The dedicated Government Guidance for Offices and Contact Centres provides a useful list of preventative measures for employees to consider. Some examples include: mandating frequent hand-washing, erecting screens or barriers, requiring desks are arranged to allow employees to work back to back, reducing the number of (in person) meetings, one way systems, staggered breaks, reducing occupancy in lifts, discouraging non-essential movement, moving workstations apart, hand sanitiser in meetings, encouraging workers to bring their own food, etc.
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 they are now required for staff in some businesses that are customer facing, such as banks, building societies, post-offices, etc. Staff in these settings must wear face coverings in areas that are open to the public, or where they are likely to come into close contact with a member of the public.
Outside of this exception, it will rarely be appropriate to require employees to wear face coverings. However PPE should be provided if the risk assessment concludes that it is required. This emphasises why employers should be guided by the need to comply with their legal duties outlined above at question 1, rather than by the exact content of the guidance.
Employees will also often need to wear face coverings on the way to work, if they make use of public transport as a part of their commute even if they are no required to do so in the office.
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 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 14 days, starting with the day on which the first person became ill.
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.