Freedom day? Guidance and issues for employers

Published 16 julio 2021

In preparation for the lifting of remaining COVID-19 restrictions next week, the Government has published updated workplace guidance reflecting the measures businesses should follow from 19 July in England: Working safely during coronavirus (COVID-19): guidance from Step 4. In this article we consider the guidance as well as other issues facing employers as the rules change on 19 July and 16 August 2021.

Please note that the other devolved nations may introduce their own guidance or requirements.

Workplace guidance and additional workplace safety obligations

As before, the Government has published sector-specific guidance to help employers in England to operate their workplaces safely.

The new guidance covers six workplace settings:

• Construction and other outdoor work
• Events and attractions
• Hotels and guest accommodation
• Offices, factories and labs
• Restaurants, pubs, bars, nightclubs and takeaway services
• Shops, branches, and close contact services

Currently (pre 19 July) the guidance is split into 14 different sector guides; however, in the main these are now consolidated into the six guides above. The only one which has not been updated is the guide for “Providers of grassroots sport and sport facilities” which now states it will be withdrawn on 19 July.

The guidance covers a number of common themes across all of the workplace settings, the key points being as follows:

• All businesses can open and the Government is no longer instructing people to work from home if they can. Employers can start to plan a return to workplaces, however, the Government expects and recommends a gradual return over the summer.
• Social distancing guidance will no longer apply, however, as COVID-19 is spread through social contact the guidance provides advice on sensible precautions employers can take to manage risk and support their staff and customers, for example, mitigating the risk of transmission by reducing the number of people your workers come into contact with.
• Employers must continue to follow statutory health and safety requirements, conduct a risk assessment, and take reasonable steps to manage risks in their workplace or setting.
• Employers should consult with employees about the health and safety measures to be put in place.

As recognised by the Government, the lifting of restrictions does not mean that the risk of COVID-19 has gone away. In addition, it is important to remember that the above guidance does not supersede an employer’s common law duty of care to their employees to provide a safe place of work as well as general duties under the Health and Safety at Work Act 1974. Employers will therefore continue to have a responsibility to assess their own workplace risks and take steps to mitigate those risks. As such, most employers, will be best advised to manage their legal risks by retaining many of their current measures. For more information on this please read 'COVID-19: The end is nigh' prepared by Thomas Jordan.

Employers will also wish to manage the potential employment claim risk of employees asserting that they will not work if they reasonably believe that they are in “serious and imminent danger”. There have been a rise in these types of claims during the pandemic. Employers can challenge that reasonable belief if they are meeting, and where possible exceeding, their health and safety obligations.

In addition to managing legal risks, retaining certain safety measures will reassure employees of the safety of their workplace. This may have additional benefits for customer facing businesses.

Vulnerable employees and pregnant workers

Employers should continue to identify at risk individuals, such as pregnant woman and those who are clinically vulnerable who may be classed as disabled under the Equality Act. Specific risk assessments should be carried out to consider whether further health and safety measures and/or reasonable adjustments are required for them. Where possible, employers should adopt a considerate and flexible approach to returning to the workplace and address individual concerns when raised.

The Government has also updated the specific guidance for individuals in England who have been identified as clinically extremely vulnerable from COVID-19. The guidance states that clinically extremely vulnerable individuals should consider adopting a more cautious approach as restrictions are lifted. However, it does not say that clinically extremely vulnerable individuals will have any additional rights to work from home beyond 19 July 2021. Where individuals need support, they can apply for Access to Work, the government scheme to provide support for the disability-related extra costs of working that are beyond standard reasonable adjustments.

Facemasks

As readers will be aware, the removal of the requirement to wear facemasks on public transport and in shops from 19 July has been a controversial topic since it was announced. Many businesses have said that they will continue to request that masks are worn by customers and the Government continues to encourage mask wearing to reduce the risk of infection in enclosed and crowded spaces.

Employers can, if they wish, request or require employees to continue wearing masks, either generally in the workplace or limited to communal areas - as long as adjustments to the rule are made for people unable to wear a mask for health or physical reasons, to ensure compliance with the Equality Act . The presence of vulnerable employees in the workplace will be a significant factor in the decision of whether to impose mask wearing. If businesses wish to continue with this requirement it will be important to explain why (for example, if justified by the risk assessment / to help prevent the risk of transmission). This is an area which emphasises the benefit of businesses consulting with employees on the COVID-19 measures they are putting in place. Employers are likely to be in a stronger position to enforce measures which have the understanding and buy-in of employees, particularly if they want to continue with restrictions that go beyond the government guidance in place at the time.

Self-isolation from 16 August 2021 / Vaccine status:

The Government has announced that from 16 August 2021, people who have been fully vaccinated will be exempt from the requirement to self-isolate if they are a contact of a positive case (provided they have a negative PCR test). If someone is not double vaccinated, they will need to self-isolate for 10 days. We are awaiting further guidance from the Government on this next step but it is likely to throw up a number of equality and pay issues for employers to consider. For example, there may be some employees who have not yet been able to get the vaccine because of age or health / pregnancy related reasons. Another potentially contentious issue is the approach to pay for employees who could have the vaccine but have chosen not to do so for reasons unconnected with specific health conditions and may not be able to work at times because of self-isolation.

Can we ask for vaccine information?

We have been asked by a number of businesses whether they can ask employees to disclose their vaccination status now in preparation for 16 August. The Information Commissioners Office is currently updating their guidance to reflect the recent government announcements so we may have further details later this summer. However, in the meantime, it is clear that vaccine data is special category data and therefore needs to be captured and used when “necessary for a specific purpose”. The current ICO guidance states “If you cannot specify a use for this information and are recording it on a ‘just in case’ basis, or if you can achieve your goal without collecting this data, you are unlikely to be able to justify collecting it”. Whether a business can currently justify collecting such data will obviously depend on their specific circumstances, which we would be happy to advise on directly.

From 16 August 2021, our view is that there will be a valid reason to request vaccination status from an employee who is identified by test and trace as being in contact with a positive case. At that time, the evidence of vaccination status would be required to check whether the business is complying with its obligations as an employer to ensure the individual is allowed to work (or not) if they are not able to work from home. This individual approach is more likely to be a legitimate and proportionate response as opposed to collecting vaccine data from all staff regardless.

NHS COVID Pass

One other point to keep an eye on is the use of the NHS COVID Pass. The NHS COVID Pass is a method of COVID-19-status certification which allows people to demonstrate that they’re at a lower risk of carrying COVID-19 and transmitting it to others, through vaccination, testing or natural immunity. At this stage it appears it will be used for larger venues (nightclubs etc) but more guidance is due to follow. Given how the COVID-19 environment is constantly evolving, it may be that the COVID Pass becomes more prevalent in customer facing environments or in workplaces generally, given its intention to help organisations to reduce the risk of transmission of COVID-19. We will keep you updated on developments.

We are advising businesses regularly in this developing area. If you would like to discuss your specific circumstances please contact Louise Bloomfield or your usual DACB contact.