Blog

Coronavirus (COVID-19) Planning for Employers


article published

Planning for return to work:
Planning for future disruption

This article covers what employers need to know for managing your workforce and workplace safely when workplaces are open once again. It includes guidance on planning for further disruption, when an employer should close a workplace (aside from government mandated closures for lockdowns and for businesses in tiers 3 and 4), and what to expect if this happens. It also includes the Government’s published Covid-19 Secure guidance for 14 different workplace situations, for when lockdown is lifted. See the list and links below.

But for the moment the England has entered its third lockdown. Wales and Scotland are also in national lockdowns. The mass vaccine roll out has begun in early January, and mass testing is already underway.

Latest Government guidance for Employers & HR planning

England entered its third national lockdown on 6th Jan 2021, to try to prevent hospitals from being overwhelmed, amid rising infections taking off across the country of a new strain of coronavirus. The UK Chief Medical offices determined the Covid threat level (different to the Tiers) be increased to 5 for the first time – i.e there is a material risk of healthcare services being overwhelmed in certain areas / strict social distancing needed.

Lockdown #3 means a re run of the first lockdown in March 2020, repeating the ‘stay at home’, ‘work from home’ messages:

  • People are allowed to leave home only for essential reasons (essential shopping, care giving, medical appointments and fleeing violence).
  • All non essential shops, hospitality, restaurants, and leisure must shut (the vast majority were already closed under the Tier 4 restrictions imposed in December),
  • work from home where possible.
  • The majority of schools are closed to all except children of key workers and vulnerable. Universities are also closed until mid February.
    Note that nurseries remain open.
    The last minute announcement of school closures of course leaves working parents scrabbling to juggle work and childcare at very short notice and yet more disruption everyone.
  • Those who are clinically extremely vulnerable have been asked to shield again by limiting the time they spend outside the home, and not go to into work.

The lockdown lasts for 6 weeks this time, rather than four, and will be reviewed on 15th February 2021. The PM stated the country might be able to start “steadily” moving out of lockdown with progress expected on the mass vaccination programme.

Vaccination roll out

Desperately needed good news was announced On 7th January. The PM announced details of a mass roll out programme of vaccination in England. All care home residents and their carers, everyone aged 70 and over, all frontline health and social care workers, and the clinically extremely vulnerable will be offered one dose of a vaccine by mid-February, he said. In England, alongside 1000 GP led sites, there will be 223 hospital sites and seven “giant vaccination centres” – as well as an initial 200 community pharmacies – offering jabs. The Army is working alongside the NHS to achieve the roll out. Everyone will have a vaccination centre within 10 miles of their home. A “full vaccination deployment plan” to be published on Monday 11th January.

NHS test & trace

Disruption from test and trace will continue whilst the mass vaccination programme rolls out. The NHS test & trace app, asks users who have been near someone who has tested positive for coronavirus to self-isolate for 10 days and get a test if symptoms develop. The request to self-isolate here is a legal requirement, and failure to do so (or encouraging someone not to self-isolate – by asking them to come back to work, for example) can result in a fine from £1000 upwards.

Employers are already fully aware of the disruption of staff being asked to self-isolate for 10 days.

Working from home

Homeworking, still the norm for so many, becomes the default once again as lockdown means that people should ‘work from home wherever possible’ and only go to work if it’s impossible to work from home. Exceptions once again include those “in key public services – and in all professions where home working is not possible, eg construction, retail or those working in someone else’s home, social workers, nannies, cleaners and tradespeople people – should continue to attend their workplaces”.

Employers will need to notify staff that they will be working from home; a familiar drill by now. But if you need to recap, read our employers’ guide to homeworking, which includes a template homeworking policy, risk assessment, guidance and resources.

Government’s 5 steps to working safely during COVID-19

The Government guidance for making workplaces ‘COVID- secure published when the first lockdown ended, set out 5 practical measures that employers must adopt to once workplaces can open again, to maintain the critical two metres social distancing, what to do where this is not possible and adopting very good hygiene and cleaning practices at the workplace.

1 work from home if you can

All reasonable steps should be taken by employers to help people work from home. But for those who cannot work from home and whose workplace has not been told to close, our message is clear: you should go to work. Staff should speak to their employer about when their workplace will open

2 Carry out a Covid-19 risk assessment, in consultation with workers or trade unions and implement it

This forms the core of your return to work plan. Take the opportunity to consult with staff, so that when they do return to work on site, they have already been consulted and given their views on making their workplace Covid-19 secure.

If possible, employers should aim to publish the results of their risk assessments on their website; the Government expects all businesses with over 50 employees to do so. Further details on risk and completing risk assessments are contained in the guidance for making workplaces ‘covid-19’ secure.

Following the PM’s announcement, on 12th May 2020 the Health & Safety Executive (HSE) published a toolkit designed to assist employers to manage and assess risks at work arising from the COVID-19 pandemic and more generally.
HSE risk assessment toolkit overview and,
HSE risk assessment detail .

3 Maintain two metres social distancing wherever possible

Employers should re-design workspaces to maintain two metre distances between people by:

  • staggering start times
  • creating one way walk-throughs
  • opening more entrances and exits, and/or
  • changing seating layouts in break rooms.

4 Where people cannot be two metres apart, manage the transmission risk 

Employers should consider:

  • putting barriers in shared spaces
  • creating workplace shift patterns or fixed teams minimising the number of people in contact with one another, and/or
  • ensuring colleagues are facing away from each other.

5 Reinforce cleaning processes 

Workplaces should be cleaned more frequently, paying close attention to high-contact objects like door handles, stair rails, and keyboards. Employers should provide hand washing facilities or hand sanitisers at entry and exit points.

Government guidance for 14 workplace situations

The Government guidance consists of 14 workplace guides for different workplace situations, listed below:

Close contact services: hair & beauty, therapists, tailors
Construction and other outdoor work
Factories, plants and warehouses
Heritage Locations
Hotels & other guest accommodation
Labs and research facilities
Offices and contact centres
Other people’s homes
Performing Arts
Providers of grassroots sport and gym/leisure facilities
Restaurants, pubs, bars & takeaway services
Shops and branches
Vehicles
The visitor economy: hotels, guest accommodation, indoor & outdoor attractions, business events & consumer shows.

Each guide sets out practical considerations for employers on how to set up a COVID-19 secure workplace. You will need to put in place as many as are appropriate for your workplaces. Expect these guides to be updated regularly so check them frequently.  You may of course need to follow more than one guide.

As COVID-19 is a new illness, employers must follow this official guidance as it is updated and adopt any additional steps as required.

The guides also confirm that the wearing of face coverings is optional and not required by law at the workplace, unless there is a specific requirement for PPE because of the industry or workplace setting.

Health & Safety compliance

HSE have the power to undertake spot checks and impose fines and workers can complain to the HSE if they think the workplace is not ‘COVID-19 secure’. HSE says workers should follow up with their employer first before contacting them. HSE have stated that in their experience of complaints so far, employers usually have not understood what is the right thing to do, rather than deliberately breaching health and safety laws, and when HSE has contacted the employer, the employer has worked with HSE to remedy the situation.

Health & Safety case law shows that where the employer has been liable, it has usually been a result of failing to implement the employer’s own system for making the workplace safe in line with its own risk assessment.

Following the guidance above will help employers to comply efficiently, to reassure your staff that theirs is a COVID-secure workplace and is a major part of an employer’s compliance with Health & Safety Law.

Each guide includes a downloadable notice which employers are encouraged to display in their workplaces, to show that they have followed the guidance. 

It goes without saying that employers will still need to follow their legal obligations for Health & Safety, Employment and Discrimination Law.

Continue to communicate very closely with your employees as they return to work and in the coming months if there are changes to the current guidance and / or local lockdowns take place. Be ready to review regularly your risk assessment and update it, and communicate it again with your staff.

Employers have a duty to take reasonable care and steps to ensure the safety of their workers at work – whether in the workplace or at home. This includes physical and mental safety. What is ‘reasonable’ will depend upon the:

  • type of workplace
  • likelihood and gravity of harm
  • costs and practicality or preventing it; and
  • justifications / defence for running any risks

COVID-19 has been designated by the UK Government as a ‘serious and imminent threat to public health‘. This means that the above Health and Safety duties are critical. If employers do not take adequate measures to protect their workers when returning to work, under the Employment Rights Act 1996 (s44), workers have the right to:

  • walk out;
  • refuse to return to work; or
  • take appropriate action to protect themselves or fellow workers

Workers are protected from any detriment they suffer from an employer as a result of workers taking the above protective action and any dismissal would be automatically unfair. Therefore employers should:

  1. carry out a risk assessment, as stated above, and
  2. maintain very good two-way communication with staff so concerns can be addressed.

Further planning for return to work post lockdown

Testing and isolating

Under the NHS Test and Trace system, everyone who has symptoms of Covid-19 must isolate immediately, for 10 days, and get a test, within 5 days of those symptoms appearing. The self-isolation period for contacts of people with coronavirus was shortened from 14 days to 10 in the UK in mid December. The 10 days isolation period includes the date of the your contact with them and the next ten full days. At the moment, these self isolation rules currently also apply to anyone returning from high risk countries.

Under new rules from mid January, all international passengers will soon have to test negative for Covid-19 before travelling to the UK. Anyone who arrives in the UK and has not got proof of a negative test could face an immediate £500 fine. details of how to get tests abroad will be published on the gov.uk website. All passengers arriving from countries not on the government’s travel corridor list must still self-isolate for 10 days, regardless of their test result.

As well as the NHS test & trace service, the Government launched the NHS test & trace app (called the Covid-19 app). It allows users to check into pubs, restaurants and other venues by scanning a QR code on their phone. They will then get an alert telling them to self isolate if other visitors at the same time are found to have been infected.

Employers will need to be mindful of the potential effect of the test and trace system on staffing. Arranging teams in small cohorts and rotating teams are sound measures.

In addition, hospitality businesses must now to help Test and Trace respond to local outbreaks by collecting contact details from customers.

The UK testing system is coming under pressure from surges in demand. Employers of essential workers and workers over 65 who are self isolating with symptoms of coronavirus can book a Covid-19 test for them online. The Government will update details of who can be tested here. Employers of essential workers should email portalservicedesk@dhsc.gov.uk with two email addresses that will be used to log in and upload essential worker contact details. Once employer details have been verified, login credentials will be issued for the employer portal for Covid-19 testing.

All care home staff and residents are now eligible for testing with priority for those in homes that look after the over-65s. An online portal is now live for care home staff and residents that makes it easy for care homes to arrange deliveries of COVID-19 test kits.

Swab tests are already available to all adults and children who are experiencing symptoms of Covid-19.

Where employers are considering securing immunity/antibody testing kits when available so that staff can be tested for Covid-19 before they return to the workplace, employers they will need to consider:

  • how they can require employees to submit to testing,
  • how to manage the privacy and data protection issues involved in processing employee’s health data which is special category data for the purposes of the GDPR,
  • how will the testing be done, and
  • who will conduct the testing.

The Information Commissioner’s Office has also published a new set of FAQs for employers on data protection issues employee temperature testing

Mental Health on return from lockdown

Mental health will have been a real issue for many during the lockdown who will want to return to work for the social effects as well to get “restarted in a more familiar environment”.

Some employees may find prospect of returning to work may be even more worrying than being at home dealing with feelings of loneliness and anxiety. Having being consistently urged to stay at home to protect the NHS and save lives, there will be widespread concern about stepping out beyond home boundaries, sending children back to school, getting back onto public transport, being back in close proximity with colleagues or just having to resume a “normal” working day.

An employer who wants reintegration to be as smooth as possible will be very much aware of these issues and should:

  • Develop a clear communication plan in place to allay concerns by setting out what the employer plans to do to help employees
  • Provide support as necessary to help those who are struggling to deal with the return to the workplace.

Changes to salary and benefits on return from lockdown

The Coronavirus Job Retention Scheme (Furlough Scheme) has been extended until 30 April 2021.

Please note that from December 1st 2020, employers cannot use the CJRS grant to fund the (statutory or contractual) notice pay for employees who are being made redundant. Nor can the CJRS be used to fund the statutory redundancy payments for employees with over 2 years service. 

Now may still not be the time for any redundancies which, in the short term use up even more cashflow paying the salary and benefits for employees’ notice periods and the statutory redundancy payment for employees with at least 2 years service. These statutory redundancy payments will need to be made at 100% salary.

Employers who have furloughed workers under the Coronavirus Job Retention Scheme, will need to review the situation each month.

Employees who may have reluctantly agreed to these arrangements while under lockdown and may be more likely to challenge these once they are asked to return to a more normal working pattern.

Therefore, employers will need to justify any decisions to prolong these arrangements or to put in place new measures, ensuring employees are properly informed (and, where necessary, consulted with) to ensure there is a clear understanding of the rationale.

As other industries announce redundancies workers will be concerned and may see the fact that they have been furloughed as indicating they are more at risk of redundancy. Ensure there is a one-to-one return to work and appropriate team meetings to re-enforce returning workers as part of the team.

Flexible working on return from lockdown

Employers would be wise to consult with workers individually about their situations to enable an effect and safe return to work. As we have already stated above the Government is recommending that employers ensure that staff work from home where they can but there is now a drive to get workers back to the workplace.

The lockdown has seen a more wide spread adoption of home working adn may be deployed as the situation requires. For example if a worker has to shield for their own or family reasons or is contacted by test & Trace or home schooling is re-introduced, home working may be required for some weeks and months. Workers may be at time unfit to work and be back into the Statutory Sick Pay (SSP) scheme.

Now is the time to update what is needed for home working on a longer term basis e.g changes to employment contract, risk assessment and identifying the correct way to use secure IT systems and the new video conferencing, messaging, collaboration platforms etc.

Our home working article covers all the elements Employers and HRs need to know in order to get home working right.

Home working going forward

Employers have been implementing remote working since the lockdown of course, and many employees will continue to work from home into 2021.

In normal circumstances, anyone working from home should undertake a risk assessment of their home workplace.

Employers are still responsible for employees’ Health and Safety and welfare when they are working at home.

Communicate with workers your policy on:
– home working,
– work travel, and
– precautionary isolation.

Read our guidance on managing home working effectively and compliantly, which includes a template risk assessment and home working policy.

What are employees’ rights if working from home.

Consider what pay your employees will receive if they work part-time, to fit around caring for children/elderly relatives.
Be as agile and flexible as you are able to ensure as many employees as possible to continue working.

Conduct internal and client meetings where appropriate using virtual meetings/video conferencing/live streaming.

Workers who are shielding

For the clinically extremely vulnerable in England, who have been asked to shield and not go into work during lockdowns, employers will still need to take a workers personal situation into account. This is because of he health and safety risk of forcing them back into the workplace with the risk of them contracting COVID-19 at the workplace. Individual discussions should always take place with these categories of workers. As employees may feel uncertain about returning to work employers can help with the transition for their clinically extremely vulnerable employees, ensuring that robust measures are put in place for them to return to Covid-secure workplaces. This includes agreeing a plan for their returning with employee, taking account of the employer’s policies in relation to COVID-19 and any necessary adjustments to enable the employee’s return. The employer should update their Risk Assessments for these changes and for these particular groups of staff.

The NHS will maintain the Shielded Patient List and, should levels of Covid-19 increase in communities, those at highest risk may be advised to take more restrictive measures to keep themselves safe. Employer should therefore plan for these employees having to work from home again.

Things to consider, depending on business requirements and staff profiles 

Some of the issues that you should consider from an employment law perspective include:

Sick leave / caring for family members & Sick Pay

  1. Any staff who have to self-isolate or be quarantined under the Health Protection (Coronavirus) Regulations 2020 passed recently are deemed to be sick and would receive contractual sick pay or, if there is no contractual sick pay, then Statutory Sick Pay (SSP).

    Staff do not need to go to their GP to get a sick note.

    The Government is advising people not to visit their GP but instead to self isolate at home for 7 days, use the NHS website for help and
    call NHS 111 only:
    – if they cannot cope with their symptoms at home,
    – cannot get help online.
    – if their symptoms deteriorate
    – if symptoms do not get better after 7 days.

    SSP is paid at £94.25 per week. SSP will be payable for 14 days by employers directly to staff and employers with less than 250 staff will be able to claim it back from the Government.

    Your workers on zero hours contracts are entitled to sick pay if they have done some work for you and have earned on average £118 or above per week.

    The Government has indicated that it is making plans for anyone not eligible for sick pay, who needs to self isolate due to the virus.

    The self employed now qualify for SSP, as we stated above.

    Those earning less than £118 per week appear not yet to qualify for SSP

    Those working in the gig economy will be able to claim universal credit and/or contributory Employment and Support allowance. Watch out for announcements outlining how this will work.

    Look out for these upcoming details and communicate as soon as they become available, to reassure staff.

  2. Plan for a greater percentage of your staff having to self-isolate, as the Government is requiring whole households to self-isolate for 14 days at home if one family member is sick (i.e has a new persistent cough, or a fever, which are the main early symptoms of the virus).
  3. Employers can decide to require staff to stay at / work from home and so would continue to pay staff full salary and benefits where staff are not sick but working from home.
  4. Staff may use their statutory rights to time off to care for dependants (short – term unpaid leave) or can use annual leave or parental leave as applicable, as the schools are closed from Monday 24th March to all but the vulnerable children and children of key workers.

    Remind employees of their rights to do so.

  5. The Government has implemented form 1 September 2020 a new payment for people on low incomes in areas with high rates of COVID-19, who need to self-isolate and can’t work from home. Payments of up to £182 to be made to people who have tested positive for COVID-19 and their contacts. The Scheme started first in Blackburn, Darwen, Pendle, and Oldham.

Planning for future disruption

There will be continued disruption in the months ahead, so businesses need to continue to:

  1. Identify business critical roles and how they can be maintained.
  2. Identify any vulnerable employees, such as pregnant women, those over 70 and those who originally received a letter from the NHS at the start of the pandemic, explaining that they must shield. Assess and agree the adjustments needed for them for example long term working from home.

    Where travel is absolutely necessary:
    – consider what protective measures should be put in place,
    – ensure that protective equipment is sourced and ordered
    – check the FCO advice for the country in question.

  3. Identify the minimum safe level of workers required to continue operating, and how that can be maintained in the worst-case scenario. Identify the point at which the business may need to cease operating temporarily and speak to us about the employment law consequences.
  4. Plan for staff working from home on a longer term or more regular basis in accordance with the Government guidelines or flexible working requests, because parents are still home-schooling.
  5. Plan for a local lockdown which means workers have to work from home again and non-essential travel is curtailed.
  6. Plan for vulnerable and/or shielding staff to have to go back to home working or taking sick leave.
  7. Some staff will be keen to return to the workplace and others may be very nervous of the health risks of travelling to and attending work.

At what point should an employer close the workplace?

Businesses need to comply with any local lockdown imposed as a result of moving into a higher alert level, and imposed by heir local authority. Aside from this, some thoughts on when an employer might close the workplace.

  1. The Acas guidance advises that if someone with COVID-19 comes into a workplace, the workplace does not necessarily have to close.
  2. In England, the local Public Health England health protection team (HPT) will get in contact with the employer to:
    – discuss the case
    – identify people who have been in contact with the affected person.
    – carry out a risk assessment
    – advise on any actions or precautions to take.
  3. A risk assessment of each setting will be undertaken by the HPT with the employer. Advice on the management of staff and members of the public will be based on this assessment.
  4. The HPT will also be in contact with the case directly to advise on isolation and identifying other contacts and will be in touch with any contacts of the case to provide them with appropriate advice.
  5. Advice on cleaning of communal areas such as offices or toilets will also be given by the HPT.

Review the plan each week and communicate regularly to staff.

From July 18th, the Government gave local councils the power to impose lockdowns to combat potential outbreaks. Councils can now close premises, pubs and cancel events without asking the Government.

Keep up to date

Refer employees who are concerned about infection to the official medical sources and advice below, and encourage them to keep themselves informed and updated as time goes on.

NHS Coronavirus COVID-19 : how to protect yourself or check if you need medical help on the NHS website.

GOV.UK: information for the public
GOV.UK: self-isolation guidance
GOV.UK: household isolation guidance
GOV.UK: guide on social distancing/protecting elderly and ‘at risk’ adults

also:
BBC: Advice for people with health conditions
Telegraph Coronavirus: ‘constant reminder’ video – hand washing is critical to staying safe during the outbreak

If you need further advice to enable your workers to start returning to your COVID-secure workplace or to continue working from home safely or to start returning to your COVID-19 secure workplace, please do get in touch. We are here to help.

If you want to talk through your plans or need specific advice please call on 0208 255 1914 or 0203 755 5288 or email me. We are here to help.


×

For more information or queries about issues discussed in this article, please contact by email.

To speak directly with Richard or any other of The Legal Partners team of specialist business and HR lawyers based at our Richmond UK office, or our partner lawyers in Singapore or Guanzhou, please call +44 203 755 5288

This article explains the main legal issues and common situations to consider. It is not a substitute for legal advice. Please get in contact to discuss your particular issue or queries.