Since September 2020, government guidance for employers has been that if employees could work from home then they should. With the announcement of the eagerly awaited “road map” for the easing of lockdown measures before us and as the COVID-19 pandemic continues to subside, the government has now said that it will conduct a review by the end of June this year into whether it will relax the default position that employees should work from home.
Homeworking can be highly productive for some employees and businesses and is an option that shouldn’t be discounted going forward. But not all employers and indeed many employees wish to continue working in such a way.
Whilst the government has taken a cautious view of easing out of lockdown, emphasizing the importance of data and not dates, there are potentially just a few months left until lockdown measures are lifted. With this in mind, what are the key points employers should consider with the prospect of “mothballed” or partially closed workplaces reopening in the near future?
Preparing the workplace for employees
Employers must undertake the following in line with COVID-19 guidance:
- The appropriate risk assessments
- Adjustments to workspaces for social distancing
- Organisation of PPE (including masks) where necessary
Employers should also ensure they are observing all the latest government updates to achieve adequate health and safety at work expectations for their employees: keeping workplace COVID-19 risk assessments under review; preparing individual risk assessments where required; and constantly monitoring wider COVID-19 developments. The detail, which is updated by the government regularly can be found at the link at the end of this article.
What if an employee does not want to return to work?
If an employee does not want to travel to work, then the starting point is that they aren’t entitled to pay if they don’t come to work. If they don’t come to work, that can be a disciplinary issue and they can potentially be dismissed if it is reasonable to do so.
An employer can suggest adjustments to working hours to try to work around the employee’s concerns, but these changes must all be agreed in writing. Making such suggestions could be expected if the employee has a medical issue as a “reasonable adjustment” but depending on the nature of the medical issue the answer might after all be to continue furlough (whilst the furlough scheme is in place), go on sick leave or even to continue employment on unpaid leave.
At the time of writing, the furlough scheme was due to finish at the end of April 2021 but it has been extended many times before and there have been political suggestions that it could be extended again.
However, since last autumn and with statistics relating to COVID-19 infections and vaccinations becoming more and more positive as time moves on, it should become harder for employees to be able to establish that a refusal to return to work is reasonable.
What if an employee in the office is diagnosed with COVID-19?
If an employee is found to have contracted COVID-19, they should still not be permitted to return to the workplace until a doctor or health care provider says that it is safe for them to do so or otherwise in accordance with current government guidance at the material time. Employers also have duties of care to the staff that the infected employee has been into contact with or whom they may subsequently work with in future.
They should therefore:
- Send the infected employee (or an employee displaying the symptoms of COVID-19) home and advise them to self-isolate, request a test and cooperate with contact tracing arrangements following the government guidelines in place at the time
- Inform employees who have been in close contact with the individual that they may have been exposed to a colleague with COVID-19. But employers should not disclose the identity of that colleague for data privacy reasons – even if it is quite obvious who that person is.
- Disinfect and clean any areas used by that employee
- Consider also asking employees who have been in close contact with the infected employee to not visit the office pending cooperation with contact tracers and test results and be extra vigilant in watching out for symptoms.
Where there is more than one COVID-19 infection connected with the workplace, employers have been obliged to report the outbreak to the health authorities. Further (regularly updated) guidance from the Government on working safely in light of COVID-19 can still be found here.
If you have any questions about returning to the workplace, please contact David Jepps.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.