Returning to the workplace guidance has now been updated by the Government.

On 14 July 2021, the government updated its guidance on how to make workplaces COVID-19 secure from 19 July 2021. This is to reflect “Step 4” of the Government’s COVID-19 roadmap.

We have considered the practical impact for employers and the key questions that are likely to arise when returning to the workplace. This guidance is applicable to the laws in force in England as at the date of writing.

What is the new returning to the workplace guidance and where can I access it?

The new guidance has been structured across 6 specific guides which will take effect from 19 July 2021.

It replaces the previous documents in force and aims to simplify the core action that should be taken. The guidance applies to employees, agency workers, contractors and other people.

What has changed?

As an overview, the returning to the workplace guidance focuses upon six priority actions and it is intended to provide practical ways of aiding a return to work. It reflects a notable shift in the emphasis and it displays a softening of the terminology used. This mirrors the lifting of mandatory restrictions and moves away from the instructive language used in the previous guides.

The core priority actions are to:

1. Complete a health and safety risk assessment that includes the risk from COVID-19
2. Provide adequate ventilation
3. Clean more often
4. Turn away people with COVID-19 symptoms
5. Enable people to check in – using the NHS COVID-19 App.
6. Communicate and train

How are risk assessments and the current measures changing?

It is important to note that, in spite of the lifting of legal requirements, COVID-19 is an ongoing reality. The government has identified that it is a risk that we must learn to live with. The returning to the workplace guidance refers to COVID-19 as a “workplace hazard” that should be managed in the same way as other workplace hazards.

Employers must continue to monitor their internal risk assessments and statutory health and safety obligations. The new guidance provides some suggested control measures to manage the risk. These measures are not compulsory and it is open to employers to review which measures are appropriate for their business, based on their circumstances. The measures may need to be adapted over coming months.

Alongside the government guidance, the Health and Safety Executive has produced some updated guidance. This guidance identifies that none of the control measures can manage the transmission of COVID-19 on their own.

It directs that a risk assessment should identify a “package of measures”. This guidance is not legally binding but employers should be extremely careful as an employee could refer to the guidance in legal proceedings.

Many employers are simply deciding to keep in place their current measures and monitoring developments over coming months. This may form a more sensible approach. Some staff will be desperate for a return to normality, but many will adopt a more cautious approach. Maintaining the status quo, for at least the foreseeable future, may offer some reassurance to these employees.

Returning to the workplace and self isolation rules

It is worth noting that the changing rules on self-isolation do not take effect until 16 August 2021. From 16 August, double jabbed individuals and under 18s will no longer need to self-isolate if they are identified as a close contact of someone with COVID-19. For this reason, some employers will maintain their current measures until this date. This may help to minimise the risk of organisational disruption caused by staff that are notified to self-isolate.

Communicating with staff about returning to the workplace

It is also important to communicate and consider the opinions of employees when reaching decisions. The new guidance identifies the legal duty on employers to consult workers on health and safety matters. It also recommends training staff.

We are seeing that many businesses are proactively consulting with staff on what measures they would like to see. For instance, if a large proportion of staff indicate a preference to continue wearing masks, this would be helpful in justifying a decision to maintain this.

This approach is also likely to improve compliance and staff engagement, as staff have had input into the deliberations. Likewise, businesses should be receptive of concerns raised by employees and try to address such concerns as they arise.

Should employees still work from home?

From 19 July 2021, it is no longer a requirement that employees should work at home if they can. However, it is not expected that all staff will be immediately be required back into work and the guidance acknowledges that it is a time of “high prevalence”. The guidance recommends a “gradual return” to the office over the summer.

It is therefore envisaged that employers can start to encourage staff to return over coming weeks. We recommend that this return is considered in a similar way to a phased return to work, to enable a sensible and measured approach.

It is clear that is there is not a “one size fits all” approach that should be taken, and employers should have tolerance for those that are apprehensive about returning. Employers should consider their duty of care towards staff and be sensitive to the various reasons why staff may be hesitant about returning. For employees that have been working at home since March 2020, or those with health concerns, the prospect of returning to work may seem particularly daunting. Employers should be particularly mindful of disabled, pregnant or clinically extremely vulnerable employees when directing staff to return.

One possible approach that may be taken is to introduce a phased return, whereby staff gradually increase their time spent in the office. This will help staff to build confidence and give employers an opportunity to assess the measures being used.

In other workplaces, it may be appropriate to devise a team type structure, whereby different groups attend the workplace at different times or days. This may be helpful to minimise the risk of high numbers of staff attending at the same time. It may also enable other work place measures (such as workplace cleaning) to take place. Employers could consider staggered start and finish times to avoid putting pressure on communal areas (e.g. lifts and stairwells) at similar times of the day.

Many employers are envisaging a “hybrid” working pattern whereby staff permanently work at home for two or three days a week, but work in the office for the remainder of the week. This can be helpful when planning seating arrangements at work.

Is social distancing still required?

From 19 July 2021, the social distancing requirements will be removed. It is no longer a requirement that individuals should maintain a specific distance apart.

In reality, the role of social distancing may be influenced by other practical measures being introduced. For instance, the returning to the workplace guidance outlines the important of putting in place measures to reduce contact between people, particularly between customers and workers. This is encouraged through using screens or barriers in situations where employees will work face to face (rather than side to side or back to back). This means that an element of social distancing is likely to be retained.

What are the ventilation requirements?

The updated return to the workplace guidance sets out the important of ventilation and it identifies that fresh air is critical in diluting the virus in occupied spaces. This is easier to accommodate in offices where doors, windows and vents can be open to aid natural ventilation.

In circumstances where mechanical ventilation is used, (i.e. fans and ducts bring in fresh air from outside) businesses should maximise fresh air. Businesses should avoid systems that only recirculate air and do not draw in a supply of fresh air.

The guidance focuses upon identifying poorly ventilated spaces and taking steps to reduce use of these areas or improve fresh air flow. It suggests that a CO2 monitor could be used to assess air quality and to determine whether extra ventilation or other control measures are required.

The guidance also encourages the use of outside space where practical.

The Health and Safety Executive has produced some examples of how businesses can take practical steps to achieve adequate ventilation in workplaces.

Are face masks and coverings still required?

Whilst face coverings are no longer required by law, the guidance encourages and “expects” face coverings to be worn in “crowded and enclosed spaces”.

The guide also suggests that employers can encourage staff to wear face masks and some employees will prefer to continue to wear a mask, particularly in communal areas. This preference could continue for many months if cases continue to rise over the autumn months.

Some employers may want to make this is a compulsory requirement. This may be limited to situations where an employee is customer facing, or times when they are moving around communal areas. Other employers may take a blanket approach that masks should be worn at all times. If this approach is taken, employers should think carefully about their rationale and whether it reflects a health and safety requirement.

Employers should also be mindful that there are some individuals that will have reasonable grounds not to wear a mask. Broadly, this would include anyone that cannot wear a face mask due to a physical or mental illness or impairment, or disability, or if it could cause severe distress. Any detrimental treatment as a result of this could lead to a potential disability discrimination claim.

How does this impact upon the office layout and can employees share desks?

From 19 July, there are no limitation on the number of employees that can attend the workplace. This is subject to maintaining the other measures outlined above.

On a practical level, employers still need to take care to review their office layout. This can include implementing screens or barriers in situations where employees will work face to face (rather than side to side or back to back).

The guidance also encourages reducing the number of people each person has contact with by using ‘fixed teams or partnering’ or ‘cohorting’ (so each person works with only a few others). This may be supported by seating people in specific areas of the workplace and considering physical distancing between desks if possible.

The returning to the workplace guidance also notes that workstations should be assigned to an individual if possible. It acknowledges that this may not always be possible and, if they need to be shared, there should be ways to clean them between each use. Employers should therefore carefully consider thorough cleaning requirements to ensure that workstations are ready for use.

Employers should also continue to promote the important of hygiene and ensure that adequate facilities are provided. Employees should have access to hand sanitisers and be encouraged to regularly sanitise their hands through appropriate signage. From a maintenance perspective, employers need to maintain full and thorough cleaning of the toilets and consider enhanced cleaning for busy areas.

What about staff that are unwell or are self-isolating?

The government has currently maintained requirements for those that test positive for COVID-19 or who have been contacted by NHS test and trace to self-isolate. These employees should not attend work and should continue to self-isolate. The rules on self-isolating are changing from 16 August 2021 (see above).

Can we require staff to show proof of vaccination or require them to take a test before attending work?

The new guidance does not specifically refer to proof of the vaccine or proof of a negative test result as a control measure. In fact, it identifies that it is still possible to contract COVID-19, and pass it on, even if you have been double vaccinated.

In light of this, we consider that it would be challenging for an employer to enforce and justify a blanket requirement for all staff to show proof of vaccination. Employers should also be extremely mindful of the data protection implications of asking staff to provide evidence of their vaccination status. Please see our blog on this topic for more information.

If you would like to discuss any issues covered in this update please contact a member of the Employment team.

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