On 19 July 2021, so-called “freedom day”, England moved onto Step 4 of its roadmap out of COVID-19 restrictions. In conjunction with this milestone, the UK Government released updated “working safely during coronavirus” guidance, effective from 19 July.
Most notably, the guidance no longer includes the instruction for staff to work from home if they can. However, the guidance urges caution and certainly does not encourage an immediate rush back to the office:
“During this period of high prevalence, the government expects and recommends a gradual return over the summer”.
“A new COVID-19 variant is spreading in some parts of England. There may be additional advice for your area”.
The guidance uses voluntary language rather than compulsory, but takes many opportunities to remind employers that they are legally obliged to safeguard workers’ health and safety, and to comply with other employment and equalities duties. A key effect of the change is to provide each employer with greater autonomy in how it satisfies those obligations in the context of its individual business and based on its own individual health and safety risk assessment.
This alert highlights the key points from the guidance as it relates to office environments. However, we recommend that anyone with responsibility for COVID-19 workplace health and safety (including in non-office workplaces) should read the guidance in full.
Employers should update, and keep updated, existing workplace risk assessments taking the recommendations in the guidance into account.
In order to carry out a suitable and sufficient risk assessment, employers should consider the different ways the virus can spread. The guidance explains that one of the main ways of spreading COVID-19 is by close contact with an infected person, who releases particles containing the virus when she breathes, speaks or coughs. Spread of the virus in this way may be prevented by:
– Ensuring adequate ventilation to mitigate the risk of aerosol spread of COVID-19. The new guidance puts much more emphasis on ventilation than previously. It encourages employers to use CO2 monitors to test how well ventilated office space is and maximise the supply of fresh air in office premises. Employers operating in buildings with sealed window units should consult with their building managers on the appropriate way to measure and maximise fresh air flow. This should include investigating whether the air conditioning system can be varied to increase fresh air within the building and considering limiting occupancy levels as a control measure.
– Encouraging use of outside space where possible.
– Putting in place measures to reduce face-to-face contact between people. The removal of the generally applicable social distancing rules means that there are no longer any limits on occupancy and/or physical distancing that apply across the board. However, the guidance still recommends taking steps that, in practice, may mean that fewer workers will be able to be in the office at any one time compared to pre-pandemic numbers. Suggested measures include installing screens or barriers, or using back-to-back or side-to-side working instead of face-to-face. In practice, many employers may determine that a reasonable degree of social distancing is required within their workplace to address risks identified by their own individual risk assessment.
– Using fixed teams or “cohorting” to reduce the number of people each person has contact with.
– Encouraging the use of face coverings by workers or customers in enclosed and crowded spaces. While face coverings will no longer required by law (other than where specifically mandated, for example, by Transport for London), the Government still expects them to be used “in crowded and enclosed places”. In an office environment, the guidance recommends measures to encourage workers to continue to wear masks in areas where they encounter people they aren’t usually in contact with and in “crowded and enclosed” places. No examples are given of what a crowded and enclosed place might be, and it is highly likely that different people will have very different views about what constitutes “crowded” in a pandemic environment. However, it seems likely that, based on their own business’s individual risk assessment, many employers will continue to require the use of face masks in communal areas, corridors, lifts, etc. Of course, consistent with obligations under equalities law, any requirement for workers to wear face masks must be adjusted as appropriate for those who are unable to wear them.
Another way the virus may spread is via contaminated surfaces or belongings, which may be prevented by:
– Advising workers to wash their hands or use hand sanitiser frequently.
– Regularly cleaning surfaces. The guidance says that workstations should be assigned to an individual if possible. If they must be shared, there should be ways to clean them between each user.
The guidance reminds employers that they have a legal duty to consult with workers on health and safety matters, and encourages employers to listen to concerns raised by staff and explain how those will be addressed and the risk of COVID-19 managed.
Once a risk assessment has been carried out, it should be shared with staff and, if the employer has more than 50 employees, it should be published on its website. It should also be kept under review and updated as and when necessary.
Many businesses have already engaged in communication with staff about return to office matters. However, employers should not underestimate the wide range of views that staff may have about how things should be post “freedom day”. There may be some who think that restrictions are no longer necessary and others who would like all restrictions to remain in place. Some employees may also have concerns about work-related travel (particularly that which may involve using public transport). Employers should ensure that they engage with these concerns.
Employers should explain their approach and the rationale for it. This will be particularly important if it is subsequently considered necessary to discipline those who refuse or fail to comply with ongoing restrictions or requirements.
Staff at Higher Risk
High-risk people are no longer advised to shield. Therefore, the guidance encourages employers to pay particular attention to their concerns and circumstances. Individual needs should be discussed and precautions adopted as advised by their medical practitioner.
However, there may be circumstances where it is not only the high-risk worker who needs to take a precaution, but those around them. For example, it may be appropriate for a worker who has not been, or does not wish to be, vaccinated to wear a face mask when in contact with a vulnerable colleague.
This is where there is potential for a conflict of interest to arise between those who remain very concerned about their health and wellbeing and those who decide not to be vaccinated or object to being subject to any further restrictions.
Self-isolation remains mandatory for those who test positive for or display symptoms of COVID-19, or who are a “close contact” of someone who tests positive. However, since 16 August 2021, those who have received a second vaccine at least 10 days before the contact will no longer be required to isolate, but should take a PCR test as soon as possible.
Self-isolating workers who have taken a negative COVID-19 test may be able to return to work, although Government guidance recommends that if a person feels unwell despite having tested negative, he should stay at home until he feels well. However, the individual will still need to self-isolate if someone he lives with has tested positive or has symptoms and is awaiting a test result.
The guidance reminds employers that if they know that a worker is self-isolating, it is an offence to allow that worker to attend work.
Note that employers should not allow employees or visitors who display COVID-19 symptoms to enter the workplace.
The guidance does not refer to vaccinations other than to remind employers that the mitigating steps should be taken even though workers may have been vaccinated.
Many employers are considering, or have considered, whether COVID-19 vaccination certification should form a part of facilitating a safe return to the workplace. The challenge in that approach, when health and safety can be safeguarded by taking the steps outlined in the guidance, is that vaccination is not mandatory, and there may be a range of reasons why a worker does not wish to be vaccinated, including those which are protected by UK discrimination laws.
The Government issued new guidance to employers on COVID-19 vaccination on 12 July 2021. It recommends that employers encourage their staff to get vaccinated and support them in doing so.
Conclusions and Next Steps
While many of the mandated steps that employers were required to take have gone, the obligation remains for employers to ensure that their workplace is safe in line with their underlying legal duties to protect the health and safety of their staff.
Employers will have more flexibility to determine what is appropriate for their particular workforces and workplaces, but also more responsibility for making, and being able to justify, decisions.
Employers should keep their risk assessments and mitigating steps under review and be responsive to changing circumstances and worker concerns.
Review and update your risk assessment in light of the new guidance and revise plans as necessary.
Communicate with staff about your proposed next steps and consider their opinions and concerns. If you decide to favour one position over another, explain why, and keep a record of your thinking in case you need to evidence it at a later date.
Educate and train line managers. Workers may have different views on several of the relevant issues. Some of those issues may be emotive, such as vaccination. It will be important to handle issues properly and consistently.
If you require staff to return to the office, be prepared to deal with flexible working requests from those who wish to continue working from home. Again, it will be important to maintain a consistent approach to avoid any suggestion of unfairness or even disadvantage because of a protected characteristic.
Take the time to liaise with any workers who are at higher risk or pregnant and to address their concerns.
If you would like to discuss the guidelines further, or their impact on any other type of work environment, please contact your usual McDermott lawyer.