COVID-19: The key questions arising from the 8 'COVID-19 Secure' guidelines

The government has produced the 'COVID-19 Secure' guidelines which apply to a number of different workplaces, and which are intended to ensure that workplaces (and those working in them) are as safe as possible during the coronavirus pandemic. The guidelines impose significant responsibility on employers to ensure individuals are able to return to a safe workplace and system of work, and there are a number of grey areas which will need to be assessed by employers on case-by-case basis. In this a

The government is encouraging people to return to work from 13 May if their employer invites them to do so.  The guidance reiterates employers' legal responsibilities to protect workers and others from risks to their health and safety.  It is not possible to completely eliminate the risk of Covid-19, however the onus is on employers to think about the specific risks their staff may face, and to do everything that is reasonably practicable to minimise those risks.

The 8 sector focussed guidelines

The 8 sector focussed guidelines are:

1. Construction and other outdoor work
2. Factories, plants and warehouses
3. Labs and research facilities (and similar environments)
4. Offices and contact centres (and similar indoor environments)
5. Other people's homes (people working in, visiting or delivering to other people's homes)
6. Restaurants offering takeaway or delivery
7. Shops and branches (or similar environments)
8. Vehicles (people who work in or from vehicles, including couriers, mobile workers, lorry drivers, on-site transit and work vehicles, field forces and similar)

The themes applicable to all businesses

The guidelines are all broadly based on the same key themes:

• Work from home if you can
• Carry out a risk assessment in consultation with workers or trade unions
• Maintain 2 metres social distancing and where this isn't possible put in place measures to manage transmission risk
• Use extra PPE only if there is a high risk of COVID-19 transmission
• Reinforce cleaning processes
• Communicate with, and train workers on safety measures

For more discussion on these themes, see our earlier article.

Understanding the challenge

The extent and nature of the obligations established in these guidelines, present significant challenges for employers to overcome before businesses can resume (full) operations.  They are also subject to change so employers will need to be ready to adapt quickly and effectively.

It will be important for employers to understand the specific guidelines which apply in relation to each type of workplace, particularly those employers whose businesses operate more than one type of workplace, such as an office, factory and/or a fleet of vehicles. Nevertheless, there will be a number of questions arising from this guidance which will be common to all employers, notwithstanding the sector.  These are considered below.

The key issues employers need to think about

To help you focus on the key issues which you should be addressing when implementing the guidelines, we have listed below a set of questions to ask yourself so you can prepare your workplace for "the new normal" -

• What steps do you need to take before you re-open your workplace(s)?
• How will you best conduct a health and safety risk assessment in each workplace?
• Under the new guidelines what are you going to post on your website concerning the risk assessment(s)?
• How can you best decide which employees should return to the workplace and who should remain on furlough leave, for example? What about those who continue to have childcare issues?How are you going to deal with flexible working requests?
• How can you best ensure that the clinically vulnerable, and those who have been advised to stay at home, are properly protected?
• How will you best (and meaningfully) communicate with staff to ensure their ongoing health, safety and well-being?
• How will you consult with trade unions or workplace representatives about return to work plans?
• For those employees who are working from home, what sort of equipment will they need to work safely, and should they be reimbursed for equipment already purchased to enable them to perform their jobs?
• What if an employee refuses to return to work? This could be because they need to use public transport and are concerned about social distancing, or they don't consider social distancing measures that you have put in place in the workplace are sufficient.
• What steps can employers take to protect themselves from allegations that the workplace is "dangerous" to employees?
• How can you effectively communicate with all of your customers, visitors and contractors and ensure that your messaging about social distancing and keeping the workplace safe is consistent?
• In terms of hygiene and cleaning, what steps should you put in place before staff return?
• Although the guidance doesn't generally require the use face coverings, what if an employee refuses to attend work because you are not insisting on their use?
• What happens when employees refuse to comply with your new social distancing measures, such as creating work shifts and/ or work groups to minimise the number people each employee has contact with in the workplace?
• What sort of policy documents do you need to reinforce the new measures, and do you need to update any existing policies? How will you communicate these new policies to staff?

Comment

Although the 'COVID-19 Secure' guidelines are helpful as a starting point, the guidelines will only take you so far. Employers should remember that their existing obligations under employment and health and safety laws remain unchanged. 

In practice, we suspect that many employers will have to grapple with many if not all of these questions over the next few weeks and months. Furthermore many of the answers are likely to be fact specific and nuanced.

We are advising on these issues on a daily basis and if, therefore, we can assist you with any of these questions or any other people related issues please contact your usual advisor at Clyde & Co.

For more Coronavirus (Covid-19) information please see our Coronavirus hub here.

Written by Charles Urquhart, Ashleigh Nelson and Rebecca Compson.