Unable to guarantee social distancing at work
We have inspected our building and reviewed our work activities but we cannot guarantee employees will be 2m apart at all times, as set out in social distancing requirements. Can we still open the workplace?
Social distancing is one of the risk control measures noted in a hierarchy detailed in the UK Government’s guidance. Because social distancing may not always be possible, it does not necessarily mean the workplace (or parts of a workplace) cannot be opened.
The Government guidance for employers on working safely during Covid-19 notes that the objective is to “maintain 2m social distancing wherever possible, including while arriving at and departing from work, while in work and when travelling between sites”.
It also applies to break rooms, canteens and similar settings, with guidance noting that “these are often the most challenging areas to maintain social distancing”.
The phrase “wherever possible” suggests this is not an absolute duty. Indeed, the guidance states that “where the social distancing guidelines cannot be followed in full in relation to a particular activity, businesses should consider whether that activity needs to continue for the business to operate, and, if so, take all the mitigating actions possible to reduce the risk of transmission between their staff”.
In respect of the former, as part of business continuity planning, organisations should be undertaking a business impact analysis, which should help inform them of the impact a loss of, or disruption to, a particular activity would have on the business. This would assist in determining if the activity could continue.
Where the activity is deemed essential, the organisation should be reviewing the risk mitigation measures contained in the Government guidance documents pertinent to that work environment. These can be regarded as best practice and include:
1. increasing the frequency of handwashing and surface cleaning
2. keeping the time people are close together as short as possible
3. using screens or barriers to separate people from each other
4. using back-to-back or side-to-side rather than face-to-face working
5. reducing the number of people each person has contact with by using “fixed teams or partnering”.
The guidance notes that if people must work face-to-face for a sustained period with more than a small group of fixed partners, the employer will need to “assess whether the activity can safely go ahead”. In particular, they must consider the safety of vulnerable employees.
Employers will need to show that they have assessed the risks and balanced the needs of
the business with the safety of employees. This is best done in consultation with employee
or trade union representatives. No workers should be expected to work in an unsafe
Re-opening the workplace after lockdown — part 1
On Sunday 10 May 2020, Prime Minister Boris Johnson stated that he had been working on guidance for employers in England on how workplaces can remain COVID-19 secure. This guidance was released on Monday 11 May 2020 as eight documents, each covering different sectors. There are some commonalities covering every sector.
As this Part 1 article focuses on ensuring the workplace is safe for employees who are returning to work, we have substantially re-worked it to summarise the Government’s specific health and safety requirements for all employers on returning to work. You are advised to take advice on your specific sector. Part 2 of our “Re-opening the workplace after lockdown” article provides employers with an overview of HR considerations involved in returning to work.
Lockdown will continue in Scotland and Wales for now. However, employers in those areas should still begin to consider how they will manage a return to work when the time comes, though area specific guidance may be put in place.
Thinking about risk
All employers should carry out a COVID-19 risk assessment to assess and manage the risks of COVID-19. The objective of this is to identify sensible measures to control the risk in the workplace. While there is no requirement for an employer with fewer than five employees to have a written risk assessment, an assessment should still be done and, in any case, it may help to write it down. Employers should consider involving workers in making decisions about health and safety, and must consult with the health and safety representatives of the recognised trade union or workforce.
To reduce risk, employers should ensure that:
• frequency of handwashing increases
• if working from home where possible, every reasonable effort to implement social distancing measures should be made to ensure that employees are kept 2m apart
• if social distancing cannot be achieved, employers should consider whether an activity needs to continue for the business to operate and, if so, take additional measures such as installing screens between workstations, using back-to-back rather than side-to-side working, reducing the number of people each person has contact with
• if people must work face to face for a sustained period, employers should assess whether that activity can safely go ahead.
Employers should consider sharing the results of the risk assessment with their workforce.
Who should go to work
Employees should work from home where possible. If this is not possible, employers should consider who needs to be at work, planning for the minimum number of people needed at work to operate safely and effectively. Where employees are working from home, their wellbeing should be monitored and they should be provided with the equipment they need.
Employers should protect those members of their workforce who are at higher risk. Those who are at the highest risk are recommended to shield and are strongly advised not to work outside of their home. Those who are at risk but not at high risk (those who are aged 70+; pregnant or have certain conditions), should work from home but if they cannot, they should be offered the option of the safest available roles with social distancing. Employers should enable employees who are self-isolating to work from home.
Equality in the workplace
Employers should be mindful of particular needs of different groups of workers, and have
particular responsibilities towards those who are disabled, as well as new or expectant mothers.
To ensure that the needs of employees are met, employers should communicate appropriately
with employees whose protected characteristic might expose them to particular risk. Employers
are under a duty to make reasonable adjustments for disabled workers to avoid placing them at a
Social distancing is to be maintained wherever possible, paying particular attention to arrival and departure from work. Handwashing facilities, or hand sanitiser, should be available at entry and
exit points, in meeting rooms, etc.
Steps that will usually be needed include:
• staggering arrival, departure and break times, taking account of those with protected characteristics
• having more entry points to the workplace
• providing more parking facilities
• discouraging non-essential movement between sites
• reviewing layouts and processes to allow people to work further away from each other
• only where it is not possible to move workstations apart, install screens
• avoiding hot-desking
• using remote working tools
• avoiding in-person meetings
• encouraging staff to bring their own food to eat at break times.
Employers should limit the number of visitors (including clients, customer and contractors) to the
workplace. Where visitors are required, social distancing and hygiene rules should be explained
Cleaning the workplace
Workplaces that have been closed or partially closed should be made clean and ready to reopen.
Workplaces should be well ventilated, and ventilation systems should be checked in case
they need a service or adjustment. In addition:
• frequent cleaning of work areas and equipment between uses is needed; this includes door handles and keyboards
• use of high-touch items should be limited
• reminders of personal hygiene standards should be provided
• cleaning for busy areas should be enhanced
• paper towels should be used for hand drying where possible.
Personal Protective Equipment (PPE)
PPE already used for non-COVID-19 reasons should still be worn. The guidance states “Unless
you are in a situation where the risk of COVID-19 transmission is very high, your risk assessment
should reflect the fact that the role of PPE in providing additional protection is extremely limited.
However, if your risk assessment does show that PPE is required, then you must provide this
PPE free of charge to workers who need it. Any PPE provided must fit properly.”
Although the wearing of a face covering is not required by law, employers should support their
workers in using one if they choose to. This means telling workers to exercise care, including:
• maintaining good hand hygiene before putting on a face covering and after taking it off
• changing the face covering regularly, and always after it gets damp or if they touch it.
Employers should consider changing the way that work is organised to create distinct groups and
reduce the number of contacts each employee has. The guidance says this can be achieved by
implementing certain measures including:
• as far as possible, splitting staff into teams or shift groups, fixing these teams so that
where contact is unavoidable, this happens between the same people
• minimising non-essential travel
• providing clear, consistent and regular communication
• setting up ongoing engagement with workers to monitor unforeseen impacts of changes.
Inbound and outbound goods
Social distancing should be maintained when goods enter and leave the workplace. Steps to
achieve this include:
• revising pick up and collection points
• considering how deliveries could be reduced
• where possible, using the same pairs of people for loads where more than one is
Re-opening the workplace after lockdown — part 2
In this article, we cover what measures employers may wish to put in place when re-opening the workplace, relating to revising working methods, employee training and absence management, as well as some of the more common HR considerations. The first part of this article covered matters relating to hygiene, cleaning and social distancing.
During his “roadmap” announcement on Sunday 10 May 2020, the Prime Minister stated that employees in England who cannot work from home are “actively encouraged” to go to work. He also said that those who can work from home should still work from home. “COVID-19 Secure” guidelines have now been devised for several sectors to help ensure employers protect employees’ safety when returning to work. Our Part 1 article has been updated to reflect guidance which is common to all employers.
Lockdown will continue in Scotland and Wales for now. However, employers in those areas should still begin to consider how they will manage a return to work when the time comes, though area specific guidance may be put in place.
How should I communicate with employees that they are to return to work?
Even in circumstances where the decision to return to the workplace happens quickly, you should aim to give employees reasonable notice of the return. This should happen even where furloughed employees were made aware of an end date to the furlough. Employees may have childcare or other caring responsibilities and a return to the workplace may signify a need for them to make other arrangements.
The return date may not be the same for all employees where you are implementing a staged return.
You should also be aware that some employees may not be in a position to return to the workplace. This could include those who are on sick leave, are self-isolating or are shielding. You should stay in contact with these employees and make arrangements for their return, when appropriate for them to do so. It may be possible for those employees who have been furloughed while shielding to do work from home.
You should also be aware that some employees may have experienced a recent bereavement and you should offer appropriate support to them on their return to the workplace.
It may be useful to set out in a letter the intended return date and all the additional health and safety requirements that employees will have to adhere to in order to ensure a safe working environment.
To identify any potential issues with a return to work, or any adjustments or support that may need to be put in place on their return, managers should speak with employees prior to the return and record the conversation. It would be useful to ask all employees things like:
• whether the employee has any caring commitments which were affected by coronavirus, for which new arrangements will need to be made because of the return to work
• the method of transport the employee will use to get to work
• whether the employee understands any additional health and safety requirements.
Discussions around a temporary change to working hours may be needed if a staggered shift hours approach is to be adopted.
Continuing with remote working
Many organisations across the UK will have put into place temporary homeworking arrangements during this period of time. In order to keep contact between staff down, you should consider if such arrangements could continue for a more long-term/permanent basis. If this is something you wish to consider, a working from home policy and provision of ICT infrastructure/facilities to support working from home should be put in place where practicable.
Restructuring and splitting teams/shifts
The following action will allow your organisation to comply with physical distancing where it is practicable to do so:
• revision of staffing rosters and splitting of teams to ensure separation of critical personnel in order to limit joint exposure and protecting the business function
• cross-train, and identify alternative sources of labour to facilitate a full complement of the required skills needed on each team/shift
• avoid switching of employees from one shift to another
• implement an “air gap” or delayed shift changeover to accommodate a full cleaning/disinfection of all shared equipment, and reduce unnecessary interactions between different shift personnel
• minimise the sharing of equipment and/or tools
• identify and suspend all non-essential operations which do not directly impact business functionality.
Making changes to working hours
The Government’s COVID-19 Secure guidelines set out that staggering hours and shifts, etc are steps an employer should take to ensure social distancing. This will not only assist when employees are entering the workplace but also ease congestion on public transport. In any case, the Prime Minister urged the public to avoid public transport when returning to work at this stage.
Similarly, alternating days of work for different groups or teams of employees may assist with social distancing requirements.
Employment laws require employee agreement when making amendments to employee terms and conditions, even on a temporary basis. It is advisable to speak to employees first and explain the changes you need to make and the reasons for the change. You may need to take employees’ individual circumstances into consideration because a change to working hours may be difficult for some employees who have childcare responsibilities, etc.
How do I deal with anxious employees or those who refuse to return?
Employee safety has to be the priority during the initial return to work period. Where workers are coming in daily, you will need to reassure any nervous employees that you aren’t putting them at risk by asking them to return to work. Requiring employees to work in an environment that put their health/safety at risk could breach the employer’s duty of care.
Some employees may be cautious about returning to the workplace for fear that it puts them at a greater risk of contracting COVID-19. You should speak to them and try to allay their concerns by letting them know all the measures you are going to take to ensure a workplace which is as safe as it can be. You can demonstrate your commitment to safety by emphasising efforts to deep-clean workspaces, making hand sanitisers and protective gear available, and restricting the number of visitors.
The phased return to work and new workplace layouts described above will further demonstrate that you are prioritising employee health.
You should take the specific circumstances of an anxious employee into consideration because this may be relevant in your decision making. For example, an employee may fall into the high risk category, or their partner may have been advised by the NHS to shield for 12 weeks because they are in the extremely high risk category. If an employee in this position still does not want to return to work, you may agree to allow a new or extended period of homeworking, or arrange for them to take time off as holiday or unpaid leave.
If an employee refuses to attend work without a valid reason, you may wish to consider disciplinary action though specific advice should always be taken here.
Employees with childcare responsibilities
It will be a common challenge for employees who are to return to work where childcare facilities remain closed and family carers are unavailable.
Where employees can carry out some (or perhaps all) their duties from home, they should be paid accordingly.
Where employees are unable to work from home, they should be encouraged to make alternative childcare arrangements but this will not be possible for all employees.
Employers should consider a temporary flexible working arrangement to adjust or reduce working hours and change working times to assist employees in managing work and increased childcare responsibilities.
Parental leave (unpaid) as well as paid annual leave or another type of unpaid leave may be solutions, at least in the short term.
Consistency is key to avoid setting unmanageable precedents and in the circumstances, where the situation is so uncertain, employees should be informed that all measures are temporary and cannot be maintained indefinitely.
On employees’ first day back in the workplace
A “re-boarding” process may be appropriate, especially where employees have been out of the workplace for a long time, either on furlough and not working, or working from home.
Managers should hold one-to-one meetings with employees with a focus on their health and wellbeing. The discussion should be used to confirm any adjustments or support needed to enable the employee to carry out their role.
Employers should remember that individuals will have reacted in varying ways to the lockdown depending on their personal circumstances and will have had different, sometimes particularly negative, experiences. If your employees have access to an Employee Assistance Programme, remind the employee that they have the opportunity to speak to a trained counsellor about any concerns they have.
Your approach to “re-boarding” should be inclusive to all employees. Whether they have been furloughed or have remained working from home, most will have experienced a change to their normal working life and may need support on returning. There may be an unequal set of experience across the workforce if some employees were furloughed on reduced pay and others were not.
Managing annual leave on the return to work
Your approach to annual leave will depend on your specific circumstances and whether your employees have taken annual leave in recent weeks. You should assess the current position with annual leave and your ability to allow employees to take it now that the workplace is back open. You may find that there is opportunity for your employees to take annual leave and encourage them to do so, or you may find that demand is such that no annual leave can be authorised.
It is important to remember that the Working Time Regulations 1998 were recently amended to allow carry over of the four weeks of annual leave that were previously exclusive to the year in which they were accrued. This means that, where it was not reasonably practicable for annual leave to be taken in this leave year because of COVID-19, it can be carried over into the next two leave years; this measure was taken to avoid a bottleneck situation towards the end of the leave year in which there was lots of leave remaining to be taken but little time in which to take it, meaning that it may otherwise be lost. It is already permissible to carry over the remaining 1.6 weeks of the statutory minimum annual leave entitlement provided there is a relevant agreement to this effect.
Communicating with employees
You should ensure all managers and staff are familiar with company policies and relevant legislation including:
• sick leave
• lay-off and short-time working
Managers must be prepared to deal with these issues as they arise, and employees need to be clear about what is required.
The appointment of a communications co-ordinator will centralise the information and manage the resulting impact. This ensures that the business is aware of absences across the organisation, other operational issues and any problems with suppliers or other related issues, in real time. This will facilitate making informed decisions on the allocation of resources.
Information and training for employees
Employees should receive training on:
• the signs and symptoms of COVID-19
• how COVID-19 is spread
• cleaning routines and hygiene controls (including respiratory hygiene, cough etiquette and handwashing and physical distancing)
• what to do if an employee or a member of the public becomes unwell and believe they have been exposed to COVID-19
• when individuals in the workplace have had contact with a confirmed case of COVID-19
• cleaning offices and public spaces where there are suspected or confirmed cases of COVID-19
• rubbish disposal, including tissues
• travel restrictions
• restricted movement advice
• familiarising key staff with the COVID-19 plan
• cross-training workers and establish covering arrangements to minimise disruptions.
Minimising risk to staff
As staff return, you should aim to have a process for identifying and delivering COVID-19 training requirements.
This can include:
• determining the necessity of COVID-19 competence and training of person(s) doing work under your control
• ensuring that the necessary person(s) receive appropriate COVID-19 training
• where applicable, taking actions to acquire the necessary competence, and evaluate the effectiveness of the actions taken
• retaining appropriate documented information as evidence of competence.
Depending on the skills that exist in your organisation, you may have to provide training for an existing member of staff or hire or contract competent contractors.
Managing absence management
It is important to review, communicate and formally implement the absence and sick leave policies in place in the organisation. In advance of any potential increase in absence, it is essential that all employees are fully familiar with policy requirements, particularly around what constitutes acceptable reasons for absence, the notification and certification requirements and the social welfare procedures.
It is important that you follow through with their policies and are consistent. The first absence in an unusual situation such as the potential exposure to COVID-19, may initially be dealt with on an ad hoc basis which may set an undesirable or unsustainable precedent should absence levels suddenly escalate.
You need to consider the effect that significant employee absences would have on your workplace.
Various types of absence need to be considered as it is possible that:
• several employees may contract a virus
• employees may have family members who require care
• there may be a fear factor, where employees consider absenting themselves for fear of contracting a virus
Employees who have been in contact with individuals who have COVID-19 or indeed any virus of special concern should follow NHS guidance for advice in the first instance and then notify the organisation before attending for work. Check on employees’ health by phone or email during their absence from work.
If an employee is absent due to a fear of contracting the virus, you must consider the risks and consider whether the employee is a vulnerable employee. Where there is no increased risk for the employee, you can request them to attend work. An employee who continues to be absent from work in these circumstances may be subject to disciplinary action for unauthorised absence.
At some point, based on public health advice, certain aspects of company policy and procedure may require adjustment in accordance with the situation as it evolves. Therefore, it is important to keep the policy under review and to communicate clearly any changes.
Handling employees who are unwell
Employees who have symptoms of acute respiratory illness are recommended to stay home if they are well enough to do so or contact the health service if they are acutely unwell. For current information on how long they should self-isolate, and therefore stay away from the workplace, please refer to NHS guidance, which can be found at this link.
Safety and welfare during recovery
Special attention should be paid to any groups with physical and learning disabilities or other specific needs (eg pregnancy, temporary disability due to injury). Planning in advance to meet these requirements can reduce risk and reassure those affected. The long-term impacts of incidents should not be underestimated. You should develop appropriate solutions, including consideration of relevant social and cultural issues, to promote employee safety and wellbeing within the organisation.