After months of working from home, many employers are now taking tentative steps to bring their staff back into the workplace.
We set out below key questions that employers should consider before welcoming office staff back to their desks.
Is my workplace “COVID-19 Secure”?
In order to limit the spread of COVID-19, it is important that people work safely. Official government guidance confirms that “Working from home remains one way to do this. However, the risk of transmission can be substantially reduced if COVID-19 secure guidelines are followed closely.” These guidelines are set out in one of 14 guides covering a range of different types of work, including a guide for “people who work in or run offices, contact centres and similar indoor environments” (the Office Guide).
The Office Guide requires employers to carry out a risk assessment in line with Health and Safety Executive guidance. As a minimum, an employer should:
- Identify what aspects of their workplace and working practices could result in the transmission of COVID-19
- Decide how likely it is that a person would contract COVID-19 in the workplace and
- Identify what reasonably practicable action can be taken to minimise the risks identified, recognising it is not possible to eliminate the risk of COVID-19 completely
Employers must share the results of the risk assessment with their workforce and employers with more than 50 employees are expected to publish the risk assessment on their website.
Are people who are more vulnerable to COVID-19 able to return to work?
The Office Guide now specifically alerts employers to the fact that some groups of people may be at more risk of being infected and/or suffering an adverse outcome if infected.
The higher-risk groups include those who:
- Are older males
- Have a high body mass index (BMI)
- Have health conditions such as diabetes (these individuals and those who are pregnant or aged 70 or over are also referred to as being clinically vulnerable)
- Are from some Black, Asian or minority ethnic (BAME) backgrounds
Employers are therefore advised to consider this in their risk assessment.
Clinically extremely vulnerable individuals (i.e. those who were advised to shield) may return to their workplace provided that COVID-19 secure guidelines are in place. However, the guidance is still that such individuals should work from home wherever possible. If extremely clinically vulnerable individuals cannot work from home, then they should be offered the option of the safest available on-site roles, enabling them to maintain social distancing guidelines (2m, or 1m with risk mitigation where 2m is not viable). It may therefore, be appropriate for clinically extremely vulnerable individuals to be offered an alternative role or adjusted working patterns temporarily. Particular attention should also be paid to people who live with clinically extremely vulnerable individuals.
Employers should also consider those with protected characteristics, including, for example, employees who are pregnant. They are entitled to suspension on full pay if suitable roles cannot be found. Employers may also need to consider if reasonable adjustments are necessary for any disabled employees.
To what extent do I need to involve my staff in the planning process?
The Office Guide provides that employers must consult with staff in a meaningful way when planning to return to the workplace, requiring “an open conversation about returning to the workplace before any decision to return has been made.” The Office Guide recognises that the “people who do the work are often the best people to understand the risks in the workplace and will have a view on how to work safely.” Employers also have a legal duty to consult employees in good time on matters relating to their health and safety at work, in particular about the introduction of any measures at the workplace that may affect the health and safety of employees. This includes measures in relation to COVID-19.
If an employer has a recognised trade union, the employer must consult with the health and safety representative selected by that union. If there is no recognised union, the guidance states that employers should consult with a representative chosen by the workforce.
Employers should also consult individually with members of staff about their return to the workplace to consider any uncertainties they have about precautions in place to make the workplace COVID-19 secure. It’s also good practice to consider individual circumstances, such as the journey to work, caring responsibilities, and if the person falls within a higher risk category.
Are there any security or safety implications of the control measures put in place?
Employers should be mindful that certain arrangements they put in place to reduce the risk of transmission of COVID-19 may expose the workforce to other risks. Even with reduced physical presence in the office and minimal face-to-face contact, employers should still ensure that adequate security remains in place to protect its staff. They should also ensure that the health and safety of their workforce is not compromised by, for example, ensuring that there are sufficient numbers of appropriately trained fire wardens and first aiders present in the office at all times (and that appropriate personal protective equipment is available for these individuals). Consideration should also be given to how to conduct fire drills and other safety and security training exercises without exposing staff to undue risk of contracting COVID-19.
What are my responsibilities in relation to visitors to the workplace?
As an employer, you have a legal responsibility to protect the health and safety of not only your worker and employees, but also visitors and other third parties that attend your workplace, such as clients or customers. You should clearly communicate to all persons attending your workplace the health and safety measures in place to reduce the risk of transmission of COVID-19. Consider the most effective ways of communicating this information, including emailing written guidelines in advance and also displaying posters at the entrance and in other visible areas within the workplace.
What are my obligations under the GDPR?
As a result of COVID-19, and measures put in place to reduce the risk of transmission, employers may find themselves in possession of more sensitive “special category data” about the health of their employees and other individuals. For example, when discussing their concerns about returning to the office, employees may inform their employer of medical conditions, pregnancies or relationships with or information about household members. Employees may notify their employer when they have suspected or confirmed COVID-19. Employers who implement testing programmes will obtain special category data from the test results, and the information and contact details obtained for NHS Test and Trace will also constitute personal data.
Any person or organisation processing information relating to an identifiable individual must comply with the General Data Protection Regulation (GDPR) and Data Protection Act 2018, which requires information to be handled lawfully, fairly and transparently. Employers should demonstrate their compliance with the GDPR by keeping accurate records of data processing and by undertaking a data protection impact assessment (DIPA) where necessary.
Employers should also review and update their privacy notices to include the new ways in which they may capture and process staff members’ and third parties’ personal data, including for the purposes of NHS Test and Trace.
Do I need to review existing HR policies and/or implement new ones?
The COVID-19 pandemic has changed the working environment, and the measures put in place to mitigate transmission will undoubtedly continue to impact working practices. Employers should consider whether existing HR policies are adequate to deal with the new COVID-19 landscape. For example, changes may be needed to a number of policies, including:
- Annual leave, especially in view of quarantine requirements and extended carry-over of annual leave entitlement
- Home working
- Sickness absence, particularly to address periods of self-isolation and associated pay
- Flexible working, as employers may expect an increase in requests following an extended period of working from home
- Dependants’ leave, given the risk that there may be further school and nursery closures in the future
- Stress and mental health, in an era of increased anxiety and possible isolation and remote working
- Health and safety policies
- The staff privacy notice and data protection policy to reflect the additional processing of personal data in relation to COVID-19
Employers should also consider whether new policies may be required to deal with unprecedented situations, including policies around dealing with a COVID-19 outbreak, requirements to test and self-isolate, notification from NHS Test and Trace and guidelines on what staff need to do to comply with COVID-19 measures in the workplace and potentially also outside the workplace.
Staff members may require training in relation to any new policies and procedures.
Is there anything I should bear in mind if employees will continue to work remotely for the foreseeable future?
In many cases, employees are likely to continue working remotely for the foreseeable future for all or part of their working time.
As part of the risk assessments, employers should consider how they will continue to remain in touch with a remote workforce and also how they will provide support for employees’ mental health as some individuals find long term working from home an isolating experience. Employers also need to ensure that their employees have a safe working environment at home and, as such, businesses may need to consider providing additional equipment to those who will be working from home on a long-term basis.
In some cases, employees may decide to take advantage of working remotely and move further away – possibly even overseas. Employers should ideally make it clear to employees that they are still expected to reside in the UK and if they wish to move overseas they must obtain approval from their employer first. Although moving overseas may seem attractive for some and technology means employees can work from virtually anywhere in the world, this can give rise to a number of tax, social security, immigration and employment law issues which should all be carefully considered before agreeing to the move.
Finally, if non-EEA nationals are sponsored under Tier 2 the sponsor will need to notify the Home Office if the employee will be working from home on a long term basis, rather than in the office. Notifications will also be needed if employers decide to close any of their premises.