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Coronavirus (COVID-19) Planning for Employers


Updated Thursday 28th May: please refresh your page.

Latest Government guidance:
Further planning for return to work:
Planning for future disruption

Latest Government guidance for Employers & HR planning

On 27th May 2020, Matt Hancock announced the launch of NHS Test and Trace system, with an ability to trace currently 10,000 contacts per day that will, we were told, be ramped up. The Government has asked that from 28th May onwards, everyone who has symptoms of Covid-19 must isolate immediately, for 7 days, and get a test. Those who have been in contact with anyone testing positive will be identified through tracing and asked to isolate for 14 days.

Employers will need to be mindful of the potential effect on staffing as workplaces and society open up. Arranging teams in small cohorts and rotating teams are sound measures, as is doggedly adhering to the still core 2 metre social distancing.


On 10 May 2020, the Prime Minister addressed the nation to announce the Government’s roadmap for lifting the coronavirus lockdown. On 11 May the Government published its Covid-19 recovery plan, setting out a three step plan for lifting restrictions. The 3 step plan is highly conditional on the infection rate remaining below 1 and the UK continuing to make progress on the Government’s 5 tests for easing lockdown

As part of this plan, the Government is now encouraging workers who cannot work from home to return to work (avoiding public transport where possible).

The PM added that for those returning to work, workplace environments would be adapted so they are ‘COVID-secure’. As with workplaces, ‘public transport operators will also be following Covid-secure standards’

Since then, Government has published for employers its guidance for making workplaces ‘COVID- secure‘.  The guidance sets out 5 practical steps that businesses must take, which should be implemented ‘as soon as practical’. It has further published guidance for 8 workplace situations including non-essential retail. that is due to reopen from 15th June 2020.

non-essential retail stores in England will be able to reopen from 15th June 2020, provided they adhere to the social distancing measures and guidelines to keep the public and workers safe. These moves are contingent of course on continuing progress against the virus.

Specific businesses such as pubs, cafes, restaurants, venues, hairdressers etc have been asked to remain closed for now, but the plan is for them to open on July 4th.

Key dates for easing lockdown Planning for Employers The Legal Partners
Dependent on Government’s 5 tests continuing to be met and R number remaining below 1. Regional adjustments may occur as we go forward.

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

These 5 steps to working safely summarise the practical measures that employers must adopt 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

Employers are asked to take ‘all reasonable steps’ to help people to work from home. So actively fortify your homeworking policies and practices. Find our employers’ guide to homeworking, which includes a template homeworking policy, risk assessment, guidance and resources here.

However, employees who cannot work from home, and whose workplace can now be opened, can start returning to work.

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 8 workplace situations

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

Construction and other outdoor work
Factories, plants and warehouses
Homes
Labs and research facilities
Offices and contact centres
Restaurants offering takeaway or delivery
Shops and branches
Vehicles

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.

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.

Expect your employees to make contact with you about when they should return to work, if you haven’t made contact already with your workforce. Be ready to outline what your business is planning.

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.

5 steps to working safely, practical examples

The 5 steps to working safely summarise practical measures that employers must adopt to maintain two metres social distancing, what to do where this is not possible and adopting very good hygiene and cleaning practices. We have seen other employers and some of our clients deploy some of these practices for COVID-secure workplaces.

  • Objects and surfaces that are touched regularly should be cleaned and disinfected frequently during the day. e.g door handles, keyboards, stair rails. The current evidence is that the COVID-19 virus survives on most hard surfaces for about 48 hours (and shorter periods on softer surfaces) so working on a maximum 72 hour virus survival period on work surfaces would be sensible.
  • Workers should wash their hands using soap and water for 20 seconds as regularly as possible, and be given hand-sanitiser.
  • If you decide the work should continue, staff should work side by side or facing away from each other rather, rather than face-to-face if possible. Consider Zig-zagging workstations can
  • Splitting teams is a good idea. For example, some companies are considering splitting teams to allow some employees to attend the workplace for e.g one week and then a second team to attend for the second week, (called “co-horting” where teams are kept as small as possible) as was trialled when the pandemic first impacted the UK. This form of staggering on-premises working will reduce public transport use during traditional rush hours and peak periods, which should ease staff health concerns while travelling. Others are looking at mixing remote working with limited time in the office.
  • Stagger break times to lessen communal use of kitchens and rest areas. Remind workers to bring their own mugs and not to make teas and coffees for others.
  • Use signage and put markers on floors and desks to remind about social distancing e.g at coffee stations or in kitchens.
  • Use digital rather than paper based systems, and
  • Using the Government testing services as they become more widely available beyond just key workers will be important.

Further planning for return to work post lockdown

Test and Trace

On 27th May 2020, Matt Hancock announced the launch of NHS Test and Trace system. The Government has asked that from 28th May onwards, anyone who has symptoms of Covid-19 must isolate immediately, for 7 days, and get a test.

Those who have tested positive for the virus will be contacted and asked to log onto the NHS Test and Trace website and identify people with whom they’ve been in close contact. Those contacts will then be contacted by NHS tracers and asked to isolate for 14 days. It relies on enormous levels of co-operation.

The test and trace system is live in England, with different systems also live in Northern Ireland, Scotland and, from early June, Wales.

Testing

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, They involve taking a swab up the nose or from the back of the throat and indicate if a person currently has 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

Now that the Coronavirus Job Retention Scheme is up and running processing grants, businesses can start planning for May and June grant payments being received and look at the longer term changes required for staff working. The Scheme will run until 31 October but employers will be required to contribute from August. Further details are awaited.

Now may still not be the time for any hasty 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. 

The Government has also announced that mortgage lenders will provide a further 3 month mortgage payment holiday for home owners as well as the £1 billion support for renters. Communicate these and ongoing changes to your staff as soon as you can.

Employers who have furloughed workers under the Coronavirus Job Retention Scheme, will need to review the situation every 3 weeks.

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.

The lockdown and then its easing will be the start of more wide spread adoption of home working. For example if a worker has to continue shielding for their own or family reasons or home schooling continues, 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 re-visit 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 some employees will continue to work from home in the mid term.

In normal circumstances, anyone working from home should undertake a risk assessment of their home workplace. Clearly, this was not possible in the early phase of adjusting to the pandemic.

However:

– working hours can still be clearly defined, and
– staff should receive their normal pay, taking into account any furlough payments from August 2020 if they work part time.

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.

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.

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.

    Remember, as of 4th 5th April, the CJRS was amended to allow for employees with caring responsibilities as a consequence of coronavirus to be furloughed.

Planning for future disruption

There is a great deal of talk about avoiding a second peak, and disruptions long into the months ahead. We may be in the eye of the storm currently, 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 and those over 70 and those who have received a letter from the NHS 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. 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?

  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

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.

We will be here to advise you during this situation and to help you plan for the future when the situation has stabilised and returns to more normal circumstances.

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.

Keep well

As leaders in times of uncertainty, we understand that there’s a lot on your shoulders, much to do and the stakes feel high.
Look after yourself through this time, you know best how; and allow those who support you to support you. Keep in touch.


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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.