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Expert insight: Managing the return to the workplace

How can COVID-19 risks in the workplace be managed, and what are some of the legal and practical considerations for employers as many employees return to the workplace? This month’s expert insight comes from Bob Fahy at law firm VWV…

Since the first lockdown in March 2020, the COVID-19 has been an ever-changing challenge, with employers needing to adapt to a steady stream of new official guidance from the government.

The most recent milestones in England have been the government ending its requirement to work from home where possible on 19 July 2021 and the Coronavirus Job Retention Scheme (ie furlough) ending on 30 September 2021. Since then, many employers have been contending with the best way to deal with their employees returning to the workplace. We consider here some of the legal and practical issues facing employers, including the government’s guidance for employers on managing COVID-19 health and safety obligations and risks in the workplace, the treatment of clinically extremely vulnerable employees and other employees who are reluctant to return at the pace required by their employer.

Managing COVID-19 Risks in the Workplace

Most employers will be relatively familiar now with the essential obligations relating to managing COVID-19 risks at work. For those who need it, there is a lot of very helpful guidance available online. Both the PHE Guidance for employers and the ACAS guidance on going to the workplace contain helpful advice on key principles and practical steps.

All employers are required to have carried out a specific risk assessment to consider steps to mitigate the risk of the virus spreading in the workplace, communicated with employees and implemented mitigation measures. This is part of their duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees.

Similarly, all employees have duties to take reasonable care for their own health and safety as well as that of others in their workspace, and to reasonably co-operate with their employer in relation to health and safety measures. Depending on the precise work situation, recommended steps could include increased cleaning of shared surfaces, providing extra hand-washing and sanitising stations and measures to increase social distancing, such as reduced occupancy and one-way systems.

The carrying out of a risk assessment is one of six priority actions set out in the guidance. The full list is:

  1. Complete a COVID-19 risk assessment
  2. Provide adequate ventilation
  3. Clean more often
  4. Turn away people with COVID-19 symptoms
  5. Enable people to check in at your venue
  6. Communicate and train workers and visitors on your safety measures

However, among those employees who were working remotely since the first lockdown, there are likely to be a number who, for various reasons, are reluctant to return to the workplace despite the risk mitigation measures put in place by their employer.

Clinically Extremely Vulnerable Employees

During the lockdown periods, employees who were categorised as “Clinical Extremely Vulnerable” (CEV) were “strongly advised” to work from home where they could and, where this was not possible, not to attend work but instead to speak to their employer about taking on an alternative role or a temporary change to working patterns, which enabled them to work from home where possible. CEV employees were those who were identified either by their GP or the government’s Population Risk Assessment as being particularly at risk of serious illness if they caught the virus or who had one of a list of medical conditions, such as being the recipient of an organ transplant, certain cancers or specific respiratory conditions, for example.

Although shielding for CEV employees ended in September 2021, it is not necessarily advisable for such employees to return directly to the workplace without specific consideration of the risks facing them. Where previously shielding employees return to work, employers should consider a specific risk assessment to identify particular risks and consider whether any adjustments should be implemented to mitigate them. Good communication with the employee at an early stage helps both parties, allowing the employee to express specific concerns and the employer to explain the steps it is taking to mitigate any risks (or, if necessary, why certain measures are not considered appropriate).

Employers should also bear in mind that many employees who were classified as CEV are also likely to have an underlying health condition that satisfies the definition of a disability for the purposes of the Equality Act 2010, ie a physical or mental impairment which has a long term (which in this context meaning likely to last for at least 12 months), substantial impact on the individual’s ability to carry out normal day to day activities. If so, their employer is required to consider the impact of the individual’s disability and make reasonable adjustments to premises or working practices to reduce such impact. These situations are always very fact-specific but it may be a reasonable adjustment to allow some disabled employees to continue to work from home, despite the lifting of the shielding regime.

Other Reluctant Returners

Of course, it is not just employees who were previously classified as CEV who may be reluctant to return to the workplace as quickly as their employer wishes. There may be a wide variety of reasons why employees are concerned about being in, or travelling to and from, their employer’s premises instead of working from home.

Employers should communicate and engage with such concerns to see if it is possible to resolve them together. There may be additional measures that employers can deploy, for instance if the concern was using crowded public transport, an employer may consider arranging for car parking to avoid use of public transport, or changing normal working times to avoid peak travel hours. If an employee is still reluctant after their concerns and potential solutions are discussed, their employer may consider allowing them to take annual leave or unpaid leave (but is not obliged to do so).
Employees are also entitled to make a flexible working request (which may, among other things, include requesting to permanently vary their contract to work all or some of their time from home). Employers are obliged to consider such requests fairly, and may only reject them on the basis of one of the 8 specific reasons provided in the flexible working legislation. However, ultimately a refusal to attend work may result in disciplinary action. This is not a step an employer will wish to take lightly and specific legal advice is likely to be required. Where there are underlying health conditions involved, the employer will need to consider disability discrimination risks. In any such situation, employers will need to be careful to ensure that a fair process is followed.

The Future

Many employers will already be in the process of working through a gradual, phased return to the workplace. Here at VWV, for example, we have been working from home throughout the lockdown periods and since September 2021, most staff have been returning to our offices on a gradual basis, coming in two or three days a week and working the rest from home. We started at around 50% of office capacity and have moved up to around 75% in most offices, with regular and clear communication from the firm’s management and desk booking systems used to regulate office occupancy. This is likely to be a familiar picture for many office and laboratory working environments.

However, the virus remains unpredictable. At the time of writing, the first cases of the new Omicron variant are being reported in the UK and the rest of Europe and the government has announced the re-introduction of compulsory mask-wearing on public transport and in shops. What impact this, and other developments, will have on the return to the workplace remains to be seen.

About Bob Fahy: Bob is a member of the Employment Lawyers Association. He regularly presents seminars for the firm’s clients, contacts and external organisations, which have included Pharmaphorum, the Ethical Medicines Interest Group, Deloitte and Hertfordshire University’s Law School. Bob has written articles on employment law issues in publications such as the Employment Law Journal, Personnel Today, the Institute of Directors Magazine and the Financial Times. He has been a panellist for the Guardian’s Small Business Network and has also been interviewed on legal issues by BBC Three Counties Radio. Bob delivers bespoke, practical HR training to clients’ managers and more detailed technical training to their HR departments.

About VWV: VWV is a full service law firm, with offices in London, Watford, Bristol and Birmingham. Their core sectors include pharmaceuticals & life sciences, healthcare, the public sector and education.

Contact: If you would like further advice on returning to the workplace, please contact Bob Fahy in VWV’s Employment Law team on 020 7665 0818.

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