The UK government is clear: throughout this period, it is important for business to carry on if it is possible to do so safely (with the exception of non-essential shops and public venues). However, all employees should be encouraged to work from home unless it is impossible for them to do so. Those who cannot work from home are permitted to travel to work, even if they are not key workers. While schools and nurseries remain shut to nearly all children, many of those who continue to work are also juggling their childcare responsibilities. For that section of the workforce, it will be difficult to return to previous ways of working until such time as schools and childcare providers are open once again.
Some UK workers will have received ‘shielding’ letters, warning them that because of their health conditions they are extremely vulnerable to the effects of COVID-19, and have been advised not to work for 12 weeks from the date of the letter. While we do not yet know if the period of shielding will be extended, for many of those individuals it is likely that they will still be in the initial 12 week period when the lockdown begins to ease.
Italy, Spain, Germany, and other European countries are in the process of transitioning to reopen businesses in phases. Spain, for instance, is allowing workers who cannot work from home – like construction workers – to return to their jobs. Austria has allowed small shops to reopen, subject to social-distancing rules, while in Hong Kong most civil servants will be permitted to return to work gradually from 4 May.
For those who are still able to work in the UK, social distancing remains crucial in limiting the spread of the disease. This includes the closure of work canteens.
Timing
Employers should evaluate whether some sort of phased re-opening with either a partial return of some functions or staggered schedules makes the most sense in their own circumstances, and what works for one business may not be appropriate for another. The decision will depend upon factors such as location, sector, business type or size, and the health status of workers, as well as specific employee concerns.
Some employees may have been furloughed under the government’s Coronavirus Job Retention Scheme, under which the employer is entitled to claim a grant of up to 80% of the employee’s salary (subject to a cap of £2,500 per month), plus National Insurance contributions and minimum employer pension contributions on that sum. Employees must be furloughed for a minimum period of three weeks, but many have been furloughed indefinitely, subject to the length of the scheme’s operation. Initially, due to end on 31 May, it has been extended to 30 June 2020.
Some employers may have permitted furloughed employees to take other temporary jobs during this period, and may have already specified the minimum notice they will give employees of the ending of their furlough. Other employees will need time to arrange alternative childcare arrangements before they return to work.
Workplace safety and prevention strategies
An employer has a duty of care to their workforce under the Health and Safety at Work Act 1974 and must take reasonable precautions to protect the health and safety of employees. The new normal is likely to involve continued physical distancing, expanded use of personal protective equipment and other counter-measures. Bringing employees back to work necessitates policies and practices regarding:
- social distancing and limiting contact between colleagues and any other visitors
- issuing reminders of good hygiene practices
- providing adequate hand washing facilities, hand sanitiser and tissues
- cleaning communal areas
- issuing employees with information on the symptoms of the virus and what to do if they have concerns
- employees who are deemed vulnerable, or extremely so and advised to shield
- isolation for those who are showing symptoms, or share a household with those who do
- travel, whether within or outside the UK
Employers should stay up to date on government guidance and that issued by other public bodies such as Public Health England, the Health and Safety Executive, and Acas. Note at the time of writing the government has announced a material set of new guidance on safety at work to be made available in the coming days.
Where the employer is aware that someone may be at additional risk, a risk assessment should be carried out to consider whether special action is necessary to protect them. This should be discussed with them (and if necessary, medical advice may also be sought). Employers may not always be aware that an employee is at risk; communications to employees should encourage individuals to seek medical advice and /or notify the employer if they are at particular risk.
Besides adhering to the guidance and creating new policies and practices, it is essential to train employees on any new health and safety procedures implemented to curb the spread of COVID-19.
Testing and health screening
Some employers, particularly those with operations in the US and Asia, may ask if they can introduce testing or health declaration measures to minimise the spread of COVID-19.
Employees’ medical information is special category data under the GDPR, and therefore should only be collected or processed if there is a substantial public interest, or a public interest in the area of public health, in doing so. It may be challenging in strict data protection law terms, but the ICO (the UK’s data protection regulator) has said generally they will take into account the compelling public interest in safety and the development of the COVID-19 situation in the UK now indicates that this type of intrusion into privacy should be temporarily justifiable on public health grounds.
Given the obligations on employers to take reasonable precautions to protect the health and safety of all employees, we consider it would be a sensible and prudent instruction to ask employees to disclose that they are, or share a household with someone who is, showing symptoms of COVID-19.
Businesses in sectors which cannot implement full remote working (such as manufacturing, food production and essential retail) have in some cases introduced temperature testing at their facilities. Employee and employee representative feedback has generally been positive, as it enables employees to keep actively working. Any testing would have to be carried out sensitively and proportionately, and the employer should provide a privacy notice to employees to explain what will happen to the data. A key recommendation is to retain as little data as possible if you do initiate these tests; for most employees it won’t be necessary to retain any data at all once they have taken a test on entry into the workplace each day.
There is a very small risk that this measure would be considered disproportionate by the ICO, especially if forced on all employees or visitors as a blanket measure and continues to be enforced as the UK outbreak starts to ease. However, the regulator says that it will take a pragmatic approach to enforcement, and there is a definite trend towards testing in manufacturing and hospitality in particular.
It is currently illegal to supply COVID-19 diagnostic home tests, because none have so far been approved by regulators and received a CE mark (a logo placed on medical devices to show it meets regulatory requirements). Home sampling kits are legal, but testing is available at present only to those:
- in hospital, showing symptoms of the virus
- health, care and emergency services staff
- other essential workers and their households
In England, testing is now also available to those in care homes and those showing symptoms but not in hospital who are over 65 years old or have to leave home to go to work, and their households. It is expected that Scotland, Wales and Northern Ireland will follow England’s approach shortly.
Managing employee concerns about returning to the workplace
As employees are asked to return to the workplace, some may raise concerns for their safety at work, especially if they or a member of their household has a pre-existing medical condition that could put them or their family member at risk if they catch COVID-19. Employers need to be mindful of workers’ concerns, and to encourage them to come forward to discuss their worries as soon as possible.
Where an employee has a health condition that makes them vulnerable, they may also be disabled under the Equality Act 2010. If so, an employer is required to make reasonable adjustments which may include continuing working from home arrangements for a further period.
Other employees may make flexible working requests, including those who need to be at home to care for children.
And there may be employees who have some anxiety about the return to work, the use of public transport, the proximity to many people. Even if these employees are not disabled, employers owe them a duty of care and must preserve the relationship of trust and confidence. In simple terms, employers should be seeking to understand the concerns and how reasonably those concerns can be addressed in handling the return to the workplace, including where feasible changing start and finish times, phasing the return in stages, or delaying it altogether.
Workforce communication
Many employers will have created a COVID-19 working group. Keep the group, but its work should transition from crisis to recovery. This group, or your communications team, should draft employee communications to ease the transition and answer questions that workers may have, and consider other forums through which employees can get information, such as virtual town hall meetings or dedicated hotlines.
On a more general level, managers should remain in regular communication with their teams to ensure they are kept up to date with new procedures, leave entitlements, and to share concerns whether about work or their personal circumstances.
Litigation mitigations
Over recent months, employers have had to take swift action to respond to a constantly evolving situation. The Coronavirus Job Retention Scheme, changes to statutory sick pay and the frequently changing government guidance has been challenging for all employers. The role of HR during and after this period remains crucial.
As businesses return to work, they must consider how to handle possible employee claims that may arise from measures already taken, and decisions yet to be made. These may include flexible working requests, discrimination claims, reductions in pay and difficult decisions about redundancy.
Employers should comply with their statutory and contractual obligations to employees, including those which require collective consultation with employee representatives. Employees should be encouraged to raise concerns on an informal basis, but if necessary, employer policies on whistleblowing, grievances, disciplinary issues and capability concerns should be followed.
Epilogue
Planning ahead and communication with employees is key to a smooth transition back to work, and employers who most successfully handle this will be those who have maintained employee trust. Developing a playbook is a good start, but it is crucial to stay well informed by:
- listening to the needs of your workforce;
- staying on top of Covid-19 government guidance and legislation which apply to managing your workforce and the transition from lockdown.
Stay safe, and stay tuned for our further alerts and webinars on COVID-19.
Baker McKenzie has put together a global resource center for all key insights and upcoming webinars as a central repository to assist our clients understand, prepare and respond quickly to the significant legal and business challenges posed by COVID-19. Please use the following link to visit our Beyond COVID-19 Resource Center for additional resources. Baker McKenzie understands that these times are challenging for all our clients and we want to assure you we are here to assist.
