UK Covid-19: changes to return to work advice

As announced by the Prime Minister on 17 July, the Government's advice on returning to work in England changed with effect from 1 August 2020.  Instead of telling people to work from home if they can, the Government is now "giving employers more discretion" on how they ensure employees can work safely: "working from home is one way to do this, but workplaces can also be made safe by following COVID-19 Secure guidelines".  The guidance now states that employers "should consult closely with their employees, and only ask people to return to their place of work if it is safe." Employers are urged to "take socially responsible decisions and listen to the concerns of their staff.  Employers and employees should come to a practical agreement about their working arrangements."  The recommended Covid-19 Secure Notices (here) have been updated accordingly.

On 31 July, the roadmap for easing lockdown restrictions was paused: the re-opening of certain higher risk leisure settings and close contact services was delayed from 1 August to at least 15 August, certain pilots of larger gatherings were put on hold, and from 8 August face coverings were made mandatory in additional public indoor settings;  several local lockdowns have also been put in place.  However, the scheduled pausing of shielding (save where local lockdown measures are in place) and revised advice on return to work from 1 August 2020 have gone ahead and the Government is also planning that schools, nurseries and colleges will be fully open in September.

The pausing of shielding means that clinically extremely vulnerable individuals are no longer entitled to SSP if they remain at home.  The advice is for them to carry on working from home wherever possible, but that they can go to the workplace as long as it is COVID-secure.  However, if they live outside but work inside a local lockdown area where shielding is advised, they should work from home where possible and not attend the workplace;  individuals in this situation may request a shielding letter as proof.

Covid-secure workplace guidance

The Government's guidance notes for specific types of workplace have been updated a number of times to reflect the above changes.  The advice that staff should work from home if at all possible has been removed; instead employers should make every reasonable effort to ensure their employees can work safely, which could mean working from home or within the workplace "if COVID-secure guidelines are followed closely".  Employers are now advised to consider the maximum number of people who can be safely accommodated on site and plan for a phased return.  The guidance states that "employers should consult with employees to determine, who from 1 August 2020, can come into the workplace safely taking account of a person's journey, caring responsibilities, protected characteristics and other individual circumstances.  Extra consideration should be given to those people at higher risk.  Businesses should consider the impact of workplaces reopening on local transport and take appropriate mitigating actions (eg staggered start and finish times for staff)."  On 12 August additional text noted that "The decision to return to the workplace must be made in meaningful consultation with workers (including through trade unions or employee representative groups where they exist). A meaningful consultation means engaging in an open conversation about returning to the workplace before any decision to return has been made. This should include a discussion of the timing and phasing of any return and any risk mitigations that have been implemented."

In relation to clinically extremely vulnerable employees (who are no longer shielding), they should still work at home if possible but, if not, the guidance encourages employers "to have individual discussions ... where reasonable" with those individuals (as well as other workers) to "consider any uncertainties they have about precautions in place to make the workplace COVID-secure".  They should be offered the option of the safest available on-site roles and it may also be appropriate to adjust their working patterns temporarily. (This was previously the advice for clinically vulnerable employees, but it is now only advised in relation to the clinically extremely vulnerable.)

Also on 12 August, additional guidance was added stating that, In relation to people who are at higher risk of infection and/or an adverse outcome if infected, employers' risk assessments should consider the Public Health England report Disparities in the risk and outcomes of COVID-19 which shows that some groups of people may be at more risk of being infected and/or 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
- are from some Black, Asian or minority ethnic (BAME) backgrounds.

New text includes:

• a reminder that the use of face coverings can inhibit communication with people who rely on lip-reading, facial expressions and clear sound;
• guidance that gatherings of more than 30 people can be held in an indoors workplace provided the COVID-secure guidelines are followed;
• advice to consider redesigning activities if necessary to enable social distancing and, if this is not possible, only continue the activity if needed by the business operation and with all mitigating actions possible to reduce the risk of transmission;
• further information on optimising fresh air ventilation and providing for disposal of single use face coverings.

As more workplaces re-open, HSE inspections to ensure workplaces are COVID-secure are using a combination of site visits, phone calls and collection of supporting visual evidence such as photos and video footage, including spot checks in places where there are coronavirus outbreaks (see here).  The HSE has highlighted in a press release some of the most common issues that HSE and local authority inspectors are finding: "failing to provide arrangements for monitoring, supervising and maintaining social distancing, failing to introduce an adequate cleaning regime – particularly at busy times of the day – and providing access to welfare facilities to allow employees to frequently wash their hands with warm water and soap".  New HSE guidance setting out the main control measures and additional measures where social distancing is not possible has been published here.

Our Employment and Health and Safety teams are currently advising clients on their return to work strategies and completion of risk assessments and has prepared an updated Risk Assessment Toolkit for Offices. Please contact us if you would like to discuss any of these issues further.