The Prime Minister has announced that, subject to a final review of data, most legal restrictions in place to prevent the spread of COVID-19 will end on 19 July 2021. Although much of the detail is missing, and further announcements and guidance awaited, it is clear that we can expect a seismic shift in the way we have all become accustomed to living our lives.
We look at the impact of the expected changes on employers and what issues to consider when preparing for the easing of restrictions:
1. Plan for a return to the workplace
For most of the pandemic, the government has advised people to work from home where possible (excluding a brief period last September, when the government actively encouraged people to return to their workplaces). At certain times, there has even been a legal requirement to work from home for those who were able to do so. The Prime Minister has confirmed that the government will no longer be advising people to work from home and that “employers can start to plan a return to the workplaces.”It remains to be seen whether this will result in office workers returning in droves and at what pace.
In addition to statutory health and safety duties, all employers have a legal duty to take reasonable care to provide their staff with a safe place of work. Employers will need to conduct thorough risk assessments to assess the safety of their workplaces and ensure that they follow the government’s Working Safely guidance, which is due to be updated.Risk assessments should, in particular, consider the risks to those who are clinically extremely vulnerable or clinically vulnerable to COVID-19, especially those for whom the vaccine is less effective. Employers may decide to retain preventative measures that go beyond the legal minimum; for example, requiring staff to wear face masks in communal areas and maintaining some social distancing.We also expect to see the emergence of sector specific industry standards for health and safety.
Some employees may be reluctant to return to the workplace, especially those who are anxious about the risk of COVID-19. Those employees who are required to travel to their workplace on public transport may now have greater concerns, given the removal of the legal requirement to wear face masks. Others may continue to feel anxious about contracting COVID-19, given the rising number of cases (estimated to be up to 50,000 per day by 19 July) and the threat of long-COVID. Employers will need to consult on an individual basis with employees who raise health and safety concerns about returning to their workplace.
2. Prepare to reopen businesses
For many employers, their businesses will be reopening after a lengthy period of closure, including nightclubs and similar venues. Employers may need to manage the transition back to work of staff who have been furloughed for extended periods, or to recruit and train new staff.Many of the roles in these businesses will involve close contact with members of the public, and may place employees at a higher risk of contracting COVID-19, especially given the lifting of social distancing and other preventative measures. Employers should conduct risk assessments and follow sector specific guidance to mitigate the risk to their workforce, giving particular consideration to employees most at risk of serious illness from COVID-19, regardless of vaccine status.
3. Address risk of high levels of absence
The government accepts that the number of COVID-19 cases will rise further, as society reopens and restrictions are lifted. Although a significant proportion of the population will soon have received both COVID-19 vaccinations, this does not eliminate the risk of infection and transmission. Even those who are fully vaccinated and succumb only to a “mild” case of COVID-19, may find themselves unable to work for a number of days, if not weeks. If an outbreak occurs among colleagues at a workplace, entire teams could be incapacitated for lengthy periods. Employers should address this risk to ensure business continuity during an outbreak.
4. Mitigate the risk of a workplace outbreak
From 16 August 2021, fully vaccinated people would no longer need to self-isolate if identified as a contact of somebody who has tested positive for COVID-19. However, although the risk of transmitting COVID-19 is reduced for those who are fully vaccinated, the risk is not eliminated. Employers may want to address this risk and implement internal contact tracing when a staff member tests positive. Some employers may consider asking them to work from home, where possible, regardless of their vaccination status, to limit the risk of a widespread outbreak at the workplace.
The government have said that fully vaccinated people who have been in close contact with a positive case would be “advised” to get a PCR test as soon as possible to make sure they have not been infected. Employers will need to think about how far they go to encourage staff to follow this recommendation. The employer’s risk assessment should consider the tricky scenario of vulnerable employees working in proximity in the workplace to those who have been in close contact with perhaps a family member who has tested positive for COVID-19, where that person has not had a confirmatory negative test.
In sectors where employees need to be physically present in the workplace, employers may be interested to know employees’ vaccination status given it affects how often an employee is likely to be off work self-isolating. Employers will need to ensure that they conduct a data protection impact assessment and process any personal data relating to vaccine status lawfully, especially as this is special category data. Employers will also need to consider any discrimination issues, given that people with certain medical conditions cannot be vaccinated and many younger people have only had a single vaccine. For example, employers will want to avoid claims that somebody’s vaccination status was the reason they were refused a job or promotion, or provided with a benefit.
Until at least 30 September 2021, it will remain a legal requirement for people to self-isolate if they test positive or are told to do so by NHS Test and Trace. Employers will risk a fixed penalty notice of up to £10,000 if they knowingly allow a worker who is self-isolating to attend the workplace. Employers should review internal policies and ensure that staff communications clearly set out what is expected when an employee exhibits symptoms of, or tests positive for, COVID-19.
5. Encourage uptake of booster vaccinations
Key to the government’s plan to suppress the virus is to offer booster vaccinations to the most vulnerable, starting from September 2021. As with the initial COVID-19 vaccination, it’s likely employers will want to encourage eligible staff to get the booster vaccination, without going so far as mandating it (except in a limited number of high risk working environments, such as care homes). Again, data protection and discrimination issues will need to be considered.
6. Protect staff from third parties
With the lifting of restrictions, including there no longer being a requirement for table service in hospitality settings, nor for the wearing of face masks or social distancing generally, many employees may be concerned that their working environments might expose them to a greater risk of contracting COVID-19 from visitors or third parties, especially those in the retail, hospitality and transport sectors. Employers may want to retain certain preventative measures in order to protect their staff members, even if there is no longer a legal requirement. It may, however, be difficult for employers to enforce measures on reluctant third parties, and employers should also be mindful of equality issues before imposing certain conditions of entry to their premises.
With all limits on social contact coming to an end and large scale events resuming without limits on attendance, we are likely to see a rise in corporate hospitality. Employers should be mindful that they owe a duty of care to their staff when participating in work-related social events and should avoid exposing them to unreasonable risk.
7. Mitigate workplace conflict and rebuild an inclusive culture
Employers may witness an escalation of conflict between staff members in the workplace, with tensions exacerbated by lengthy periods of relative isolation and the uncertainty of what the future currently holds. Points of conflict may arise between those who are anxious about the risk of contracting COVID-19 and those who are perceived to take a less cautious approach, either in the workplace or in their personal lives.
Many employers will need to take proactive steps to rebuild an inclusive culture, where new divisions have emerged in their workforce: such as between those who were furloughed and those who continued working throughout the pandemic; between those who were able to work from home and those whose roles did not facilitate this; and between those who are fully vaccinated and those who are not (because not yet eligible or able, or who choose not to be vaccinated).
8. Continue to support working parents
The Education Secretary has announced new measures for schools and colleges, which are intended to maximise attendance, as children will no longer need to self-isolate if they are close contacts of someone who has tested positive for COVID-19. This will be welcome news to working parents and employers alike, who have experienced widespread disruption throughout the pandemic as a result of the high number of children being required to self-isolate at home at any given time. That said, with case numbers rising and no intention to vaccinate children at this stage, working parents are not yet out of the woods: employers should still expect a level of upheaval due to COVID-19 infections among children and their teachers, and should consider what steps might be needed to support parents in managing both their working and parental responsibilities.
9. Prepare for possibility of further COVID-19 restrictions
Although the government will, “as far as possible prioritise strengthened guidance and seek to avoid imposing restrictions that have significant economic, social and health costs”, the Prime Minister did not rule out imposing further local and national lockdowns or restrictions in response to new variants. The government will maintain contingency plans for re-imposing economic and social restrictions at a local, regional or national level, if evidence suggests they are necessary to suppress or manage a dangerous variant. Employers should, therefore, ensure that their business planning for the next 12 months includes provision for further lockdowns or increased restrictions, such as the reintroduction of working from home guidance.
Kerry Garcia
Sarah Taylor