Return to Work Post-Pandemic – Our Ultimate FAQs
We answer your burning questions about the Return to Work as Covid-19 restrictions continue to ease. This is an ever-changing landscape and if the position changes further we will issue a further update.
1. What is the current advice from the Government on returning to work?
Individuals should continue to work from home where they can. It is the employer’s responsibility to facilitate home working for employees and this includes providing any IT or equipment. If home working is not feasible, employees can return to the workplace but employers must ensure that it is Covid-19 secure.
2. What does an employer need to do to ensure the workplace is Covid-19 secure?
Employers must do what is reasonable and necessary to reduce the transmission of Covid-19. To achieve this, employers need to undertake a risk assessment of the workplace. The Government’s guidance advises a Covid-19 risk assessment should:
- identify what work activity or situations might cause transmission of the virus
- think about who could be at risk (and consider those who are at higher risk)
- decide how likely it is that someone could be exposed
- act to remove the activity or situation, or if this isn’t possible, control the risk.
Following the risk assessment, an employer should then take action to control the potential spread of the virus. This could be done by adopting reasonable measures and implement policies on the following (but is not limited to):
- social distancing – this could include creating distance between work stations, minimise sharing workstations, reducing face to face meetings, introducing one way systems etc
- face masks – If social distancing is difficult face masks could be used to reduce the risk of transmission
- frequent cleaning – employers should consider how often surfaces are cleaned and consider increasing how often this occurs
- hand sanitation – Ensuring hand sanitiser and soap is available to employees.
Employers should also consider ventilation within the risk assessment as fresh air helps to reduce the transmission of the virus. If windows need to be kept open to maximise ventilation, this should be balanced with appropriate working temperatures.
3. Should employers communicate to employees on returning to work and the new practices in place?
Once the workplace is Covid-19 secure, employers should communicate with employees when they will return to work and the new measures in place. They should ensure that this is communicated clearly and all employees understand the procedures they must follow. Employers should also consider using signage and other methods to remind those entering the workspace of the measures. Some individuals may be apprehensive about returning to work so it is important that employers listen and talk through any concerns raised. If the work can be done from home, employers should facilitate this.
4. Can employers force employees to return to work?
It will depend on the type of work and the individual’s circumstances. The current guidance from the Government states that those who cannot work from home should continue to travel to work. This would suggest that an employer could force an employee to return to work if they cannot carry out their duties from home.
However, an employee may be able to refuse to return to the workplace if they have concerns about health and safety. The law will protect an employee from detriment if they reasonably believe that going into work would put them in serious and imminent danger.
If an employee raises concerns over health and safety issues, this must be taken seriously. An employer may need to reassure an employee of the measures put in place or re-evaluate whether further action needs to be taken to ensure safety in the workplace.
If an employee continues to refuse to go back to work and reasonable safety measures have been put in place, the employer could start disciplinary proceedings. It would be advisable to seek legal advice before taking this action.
An employee may also raise concerns related to their own health condition or for another personal reason which will need to be carefully considered. If the employee is disabled, the employer has a duty to make reasonable adjustments.
5. What action can employers take if employees are not following the Covid-19 policies?
Keeping the workplace Covid-19 secure is a priority for health and safety. Reasonable health and safety measures (as discussed in question 2 above) will need to be implemented to reduce the risk of transmission and these policies will need to be followed by everyone who enters the workplace.
In the first instance, employers should ensure that their policies on workplace practices have been clearly communicated to employees and these practices have been understood. Employers should also ensure that employees have been reminded of the practices in place, for example by the use of signage or follow up emails.
If employees fail to follow the policies in place then disciplinary action may be necessary. Any concerns raised with non-compliance should be investigated through the internal disciplinary procedure. It would be advisable to seek legal advice before taking disciplinary action against an employee who has not followed the measures. If the measures in place are unreasonable and disciplinary action has been taken for non-compliance, this may give rise to unfair or constructive dismissal claims.
6. Should an employer provide testing for Covid-19 to reduce the spread of the virus?
There is no legal obligation on employers to provide testing for employees, but they can if they wish.
The Government are encouraging employers whose workforce will be ‘on-site’ to provide access to at least two voluntary lateral flow tests every week, but this is not a mandatory requirement.
7. Can employers impose mandatory Covid-19 testing for employees?
Employers must do what is reasonable and necessary to reduce the risk of Covid-19 transmission. In the first instance, employers should try to implement measures such as social distancing and mask-wearing (as per the above) to create a Covid-19 secure work environment.
If social distancing or other additional measures are not appropriate due to the nature of the job, then it might be reasonable and necessary for employers to enforce mandatory testing.
A decision to implement mandatory testing must be considered carefully and all practicalities must be clearly communicated to employees. It is intrusive to require employees to provide health information and some employees may not be comfortable doing this. Further legal advice should be sought before introducing a policy for mandatory testing.
8. What considerations need to be made for a mandatory testing policy in the workplace?
In the first instance, social distancing and other measures should be considered before mandatory testing is introduced as a way to reduce Covid-19 transmission. Other considerations to be mindful of when introducing a mandatory testing policy are:
The results of an employee’s Covid-19 test is health data and extra care must be taken when handling this type of data under GPDR. Employers should only collect data regarding an employee’s health if it is necessary and proportionate. Employers must ensure that data is secure and must inform employees what the data will be used for, who will have access to this data and how long it will be kept for. If collecting data on Covid-19 tests is unnecessary/disproportionate, for example, because other measures in place sufficiently reduce the risk of transmission, then testing should be stopped immediately.
How testing will be carried out
If testing will be mandatory in the workplace then employees will need to be informed where testing will be carried out and who they should advise of their test results.
The procedure for positive results
If an employee tests positive for Covid-19, the policy should state the pay available for self-isolation, how the absence from work will be recorded and to whom this information will be communicated to.
Careful consideration needs to be made when deciding whether to take disciplinary action against an employee who refuses to take a Covid-19 test. A policy for mandatory testing must be reasonable and necessary in order to justify disciplinary action against an employee. It would be advisable to seek independent legal advice on mandatory testing before taking disciplinary action.
9. Can employers refuse employees to work unless they have had the Covid-19 vaccination?
Creating a policy that does not allow employees to work unless they have been vaccinated should be avoided.
Mandatory vaccinations would be highly intrusive for employees and it would raise serious ethical concerns. The law does not state that individuals must have the vaccine and some people may not be offered the vaccine at all due to health reasons or pregnancy. If an employee was dismissed or treated differently for not being vaccinated, this could give rise to a range of claims such as discrimination or unfair dismissal. There are also Human Rights concerns as a mandatory policy for vaccination contravenes against an individual’s right to private life.
The current medical advice states that a person who is vaccinated can still spread Covid-19 if they are infected. It would be very difficult for an employer to prove mandatory vaccinations are reasonable as most workplaces can implement social distancing and less intrusive measures to reduce the risk of transmission, without unnecessary interference into an individual’s healthcare.
Legal advice should be sought before introducing a policy on mandatory vaccinations.
10. What discrimination concerns could be raised from a mandatory vaccinations policy?
The Equality Act 2010 gives protection against unlawful discrimination in respect of nine “protected characteristics” which include sex, race, age, disability, pregnancy, religious beliefs etc.
Direct Discrimination: Direct discrimination occurs if someone is treated less favourably than others because of their protected characteristic. For example, if an employer will not allow an individual back to work because they have a health condition that means they cannot have the vaccine.
Indirect discrimination: Indirect discrimination is where a provision, criterion or practice (including rules and employment policies) adversely affect individuals and this cannot be objectively justified. For example, not allowing employees back to work unless they have had the vaccine could adversely affect those under 30’s who are not able to have the vaccine yet.
11. Can employers encourage employees to get the vaccine?
Employers can encourage employees to have the vaccine. Employers can provide support by allowing paid time off for the vaccine appointment or for the side effects caused by the vaccine.
Whilst employers can encourage employees to have the vaccine, they should be careful to not treat employees any differently if they know they have refused the vaccine. If they did so, this could potentially give rise to discrimination or constructive dismissal claims.
12. Can an employer obtain data on the Covid-19 vaccine status of employees?
To obtain data on employee’s health, under GPDR it must be fair, necessary and relevant for a particular purpose.
The ICO provides guidance on employers obtaining information on employee’s vaccination status. Before asking employees whether they have had the vaccine, employers must be clear on how obtaining this information will be of use to them. It is not enough for employers to obtain this information because they are interested; it must serve a particular purpose.
All employers are under a duty to ensure that the workplace is Covid-19 secure. Social distancing, facemasks, increased sanitation etc. will be enough in most workplaces to meet this duty.
Vaccinations assist in immunity but do not remove the risk of transmission; therefore, obtaining information on vaccination status does not absolve any duty to ensure the workplace is Covid-19 secure.
If an employer has a good and compelling reason for obtaining this information then it may be justified. However, for the majority of workplaces, it would not be reasonable to obtain data on employee’s vaccination status.
Legal advice should be sought before obtaining data on an employee’s health status.
13. When will the current restrictions be lifted?
The Government has advised all restrictions, including social distancing, will be lifted no earlier than 21 June 2021. This means that the restrictions may be lifted later than 21 June 2021, it will depend on the data regarding transmission and hospital admissions leading up to this date.
The employment guidance for business portal
In addition to the Q&A’s, we are pleased to announce that we have an easily-accessible Ashtons Legal Online HR Portal for businesses, which contains over 95 HR documents, templates and draft letters, covering over 14 topics such as contracts and offer letters, disciplinary issues, flexible working, performance management, family leave, sickness absence, recruitment, termination of employment and redundancy. The portal also contains a Furlough Agreement and a Job Support Scheme Open Agreement.
All of these materials are regularly updated to comply with new developments such as the COVID-19 crisis and the Good Work Plan, which came into effect on 6 April 2020.
If you would like unlimited one-year access to this portal, we are charging £325 plus VAT.
Please get in touch by emailing employment law solicitor, Claire Sleep at email@example.com.
For specific advice for your business, please get in touch with our specialist Employment Law team through this website or by calling 0330 404 0778.
For all of our COVID-19 (Coronavirus) advice, please visit http://www.ashtonslegal.co.uk/coronavirus/
Our partners at Ashtons HR Consulting are also on hand to assist you.
This information is correct at 9am on 28 April 2021.
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