Posted: 28/04/2020
There is currently a plethora of press coverage discussing when lockdown restrictions may be relaxed. Speculation surrounding the date that the government measures introduced on 23 March 2020 will be lifted varies from weeks to months. It is clear that, at the point the restrictions are relaxed, this will initially be a limited relaxation in order to guard against a second peak in infection. Large retail organisations are already taking steps to move from online sales to opening stores and businesses will be keen to limit as far as possible any economic damage they may sustain as a result of the lockdown. Given that restrictions may be revoked, at least in part, with relatively short notice, businesses should start considering how they may be able to bring staff back to the workplace.
Most businesses have been able to implement some form of home working in light of the lockdown restrictions. However, this has caused concern about employee wellbeing and mental health. There are also increased health and safety considerations with some employers sourcing additional IT equipment and office furniture to ensure that staff are able to access systems properly and work productively.
Any easing of restrictions will lead to questions as to whether staff can or should return to their normal working patterns. The ability of staff to do this will no doubt depend on when schools reopen and the availability of alternative childcare (bearing in mind that family childcare may not be an option), together with the viability of individuals continuing to perform their role at home and businesses implementing appropriate measures to protect their health.
Companies need to investigate the physical practicalities of any return to work. The likelihood is that, even when lockdown measures are eased, there will still be some form of social distancing. This is likely to apply in offices and workplaces too. Many workplaces are now open plan and as such will not easily be able to offer a two metre distance between individuals at their work stations. Space planning considerations should be taken now; by reducing available working space to guarantee social distancing, companies will lessen the seating capacity in the office. It is therefore worthwhile examining whether or not a rotating shift pattern for staff will be required. This can be based on business needs, although companies should be careful about potential discrimination issues if they are applying any form of selection criteria, including those relating to childcare issues.
It is also likely that those individuals who are considered vulnerable, and have been issued with letters suggesting that they should shield for a period of 12 weeks, may face further limitations on their ability to return to work. Currently the Coronavirus Job Retention Scheme is due to end on 30 June and, if these individuals are not able to return to work or work from home, then it may be that they cannot be placed on furlough either. Companies may consider asking individuals to sign waivers if they wish to return to the workplace (for mental health or social reasons), but those waivers may not be legally enforceable and will not guard against the potential associated adverse publicity. If individuals are unable to return to work and furlough is not an option, then they may be classified as being on sick leave (although depending on the terms of their contract they may only receive statutory sick pay).
In addition to physical desks, companies will need to consider whether they provide any personal protective equipment. As a minimum, companies should look at providing hand sanitisers and disinfectant to workers. They should also assess whether additional cleaning of communal areas is required and, in situations where there are potential cases of coronavirus, deep cleaning may be appropriate.
To limit the possibility of reinfection occurring in the workplace, employers should ensure that staff are issued with clear self-isolation guidelines and that these are properly implemented. A number of companies are also looking at implementing temperature checks for staff returning to work. The easiest and most practical way to do this is to obtain consent from individuals whose temperature is being taken; organisations can maintain that checks are appropriate to ensure that the health and safety of all staff is protected. However, this can prove challenging for a number of reasons: firstly, a raised temperature is not just a symptom of coronavirus and could be a symptom of a number of other conditions; secondly, if the individual doesn’t agree, employers will need to consider if they wish to commence disciplinary action (for failure to follow a reasonable instruction), or take the higher risk approach of placing the individual on unpaid leave. If consent is given to a temperature check, then there are additional GDPR considerations such as how long this will be kept for, and how it will be stored. As testing becomes more widely available, employers may begin to ask for certification that individuals are not infected with coronavirus. This could be contentious and create significant issues for the employer both in respect of the administration of the tests and the legal issues surrounding them.
Additional GDPR considerations relate to advising other members of staff if their colleagues are unwell due to coronavirus, or are displaying symptoms.
Even where an employer has taken all reasonable steps on social distancing and personal protective equipment, employees may still refuse to return to work. Many people are maintaining that they are not prepared to return to work due to the perceived risk to their health, or to vulnerable individuals with whom they may live. In these circumstances, employers are able to offer periods of unpaid leave (by way of a sabbatical or if the reason for the refusal is childcare issues, then unpaid parental leave), or they can consider a disciplinary process for failure to attend for work. The key consideration in both situations will be the reasonableness of the request, and in particular, the steps the company has taken to protect the employee in the workplace. Employers should also consider concerns that employees may raise over their commute to work. Whilst staff travelling to work in their own vehicles may not face any difficulties, those who rely on public transport may not be prepared to risk infection through travelling to work (and may also not be able to use the public transport system if there are restrictions in respect of capacity). Employers should think about the approach that they will take if an employee refuses to return to work due to their ability to get to work generally, or, in their view, safely.
In addition to any claims that employees may have, specific consideration should be given to the terms of insurance policies that are in place. This will be critical as, if there are work related issues, companies may wish to rely on insurance. Where appropriate steps have not been taken businesses may not be offered cover.
As the coronavirus pandemic develops further, it is increasingly likely that additional guidance will be provided by the Government and companies will need to be alert to this. For the time being, there are plenty of things to evaluate in terms of their ability to return to some degree of normality.
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