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Employment: Back to work and Covid 19

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With changes coming on 1st August, we have produced an FAQ to answer questions about getting employees back to work, based on government guidance.

1. Do I need to carry out a risk assessment?

Yes, your risk assessment should be in line with government guidance which can be accessed HERE.

The risk assessment should be in writing regardless of the number of employees, even though legally, this is required only for those businesses with 5 employees or more.

Once a risk assessment is carried out, the employer should look to mitigate their risk and consult with employees on the process. The risk assessment should be published on the employer’s website if the business employs more than 50 employees as per the government guidance.

2. Can an employee refuse to return to work on the grounds that this will propose a risk to themselves or someone that they live with?

Unless there are grounds for a discrimination claim, strictly speaking, failure to attend work can give rise to disciplinary action for failure to obey a lawful and reasonable order.

This would trigger the need to investigate before any decisions are taken.

However, the current situation is complicated by the potential for a health and safety detriment claim. For this reason, employers are advised to take refusals on a case by case basis and see if a middle ground can be agreed before imposing any action.

3. Will an employee who refuses to return to work be entitled to pay?

Generally speaking, employees have no right to pay if they are not going to work.

However, the Statutory Sick Pay (SSP) provisions entitle employees to SSP if they are absent from work and self-isolating in accordance with the applicable government guidance.

This eligibility to SSP will end on 31st July 2020 according to the shielding guidance issued on 7th July 2020 HERE.

Equally, the employee is entitled to SSP if they are self-isolating in accordance with government guidance. In all other situations, employees are strongly advised to consider the situation on a case by case basis and fully consult with the employee before deciding to withhold pay.

4. How do employers distinguish between vulnerable employees and extremely vulnerable employees?

There is a list of extremely vulnerable people on the government’s website. This is updated regularly. Extremely vulnerable people tend to also have a protected characteristic and in turn, will be protected by the Equality Act.

Vulnerable people tend to fall in the following categories:

  • Cancer patients
  • Patients with severe asthma
  • Patients with respiratory diseases
  • Women who are pregnant

5. How do you deal with an employee if they are extremely vulnerable and yet they are requesting to come back to work?

It is imperative that as an employer, you follow government guidelines.

The employer will need to carry out a risk assessment and consult with the employee.

At this stage, it would not be advisable to allow an extremely vulnerable person back to work when current guidance is for the extremely vulnerable person to shield until 31st July 2020. The government guidance in relation to shielding was updated 6th July 2020. The employer would need to consult with their insurance provider – there is a chance the organisation’s insurance will not cover this situation.

6. Will the employer need to update their GDPR policies?

Collecting more data in relation to employees or client’s health will mean that policies will need to be updated to reflect this.

Under the current data protection framework, holding information about an individual’s temperature and/or symptoms comes within the special categories of personal data (this was previously known as ‘sensitive personal data’). This places greater obligations on employers when handling this type of data.

Employers will need to assess why they need the information and, if it is relevant. update their policies and procedures.

The Information Commissioners Office (ICO) gives some helpful guidance HERE. In addition to updating GDPR policies, privacy notices – both HR and third party notices should be renewed and updated to take account of the changes in practice.

7. Can an employer tell other employees if an employee has tested positive for COVID 19?

Although there are notification requirements, employers should avoid naming individuals. Instead, employees should be informed a colleague has contracted Covid-19 and that they are taking the appropriate actions.

8. Will face coverings be necessary in the workplace?

Government guidance suggests when and how face-coverings should be worn (see SEE HERE).

The employer needs to assess the environment of the workplace and whether it will be necessary for employees to wear a face-covering while they are at work. At the time of going to press face-coverings are not deemed necessary when social distancing in well-ventilated offices can be observed.

However, it is recommended that employers keep open the lines of communication with employees and update their practices on the use of face-coverings in the event government guidance changes. If an employee chooses to wear a face-covering, this should be supported by the employer.

9. Is an employee entitled to carry over unused holiday due to COVID 19?

The government has introduced changes to the Working Time Regulations 1998, allowing employees and workers to carry over up to 4 weeks’ paid holiday into their next 2 holiday leave years.

This change applies to any holiday the employee or worker does not take because of coronavirus, for example: if the employee is self-isolating or too sick to take a holiday before the end of their leave year. If the employee has had to continue working and could not take paid holiday. Employees may also be able to carry over holiday if they’ve been ‘furloughed’ and cannot reasonably take it in their holiday year which it has accrued. MORE HERE

10. What records do we need to keep?

The government has issued guidance on those records companies should keep; for those attending its premises. This includes staff and visitors and is designed to support and assist the “track and trace” system. The records should include:
1. Names and contact details (a phone number is sufficient)
2. Attendance time and dates
3. In the case of a visitor or contractor, details of all people they meet during their attendance.

These records should be held for 21 days. It is recommended that privacy notices are reviewed to ensure GDPR compliance. Further information can be obtained HERE.

In these unprecedented times, an employer will need to continuously risk assess, consult with their employees and implement the appropriate action(s) going forward. The employees should be clear on what and when changes and processes will be bought in place and should an employee have any concerns these should be dealt with on a case by case basis.

This publication provides general guidance on an area of law which is subject to continual change and at present is largely untested in the courts. We do recommend that advice is sought in relation to specific matters.

The information in the document was last updated 15th July 2020.

Further guidance can be found at https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19 on how to open your business safely.

Lauren Cullen

Posted:

Lauren Cullen

Employment Solicitor

Lauren is a Solicitor in the Employment Team. She specialises in in all aspects of employment law, she routinely acts for both private sector organisations ranging from SMEs to multi-national companies and public sector organisations. Lauren also has a wealth of experience in litigation dealing…