“Freedom day” at last... but how do employers now remain COVID-secure?

Last updated 20 August 2021, 15:00

Last week finally saw England move to step 4 of the Governments roadmap out of lockdown. From 19 July, the Government are no longer instructing people to work from home if they can. Instead, and despite the high prevalence of the COVID-19, they now expect a gradual return to the workplace over the Summer.

Not surprisingly, this change in approach is now reflected in the updated Working safely during coronavirus guidance which has narrowed from 14 to six workplace publications (there is separate guidance in place for grassroots sport participants, providers and facility operators, schools, further education and childcare providers, wedding and civil partnership ceremonies, receptions and celebrations, and vehicles)Essentially, this guidance makes it clear that employers are expected to discuss suitable working arrangements with workers (and Trade Unions if applicable) that meet both individual and business needs. Whilst the need for social distancing is no longer required, employers must continue to follow statutory health and safety requirements, conduct a risk assessment, and take reasonable steps to manage risks in their workplace. More specifically, all 6 publications set out six “priority actions” that all employers should adopt in order to protect staff and customers in the workplace;

1. Complete a COVID-19 risk assessment
2. Provide adequate ventilation
3. Clean more frequently
4. Turn away people with COVID-19 symptoms or those who are required to self-isolate
5. Enable people to check in at your venue
6. Communicate and train (i.e. keep all workers, contractors, and visitors appraised on what safety measures are in place)

Not surprisingly, the more extensive publications relate to “shops, branches, close contact services”, “offices, factories, labs”, “restaurants, bars, pubs, nightclubs, and takeaway services” which each contain 9 themes for employers to consider when seeking to meet their responsibilities under health and safety law. The remaining 3 publications, which relate to “construction and other outdoor work”, “events and attractions”, and “hotels and guest accommodation”, are less extensive albeit still contain most of the 9 themes set out below;

1. Thinking about risk

All employers must carry out a workplace risk assessment which includes the risk of COVID-19. In particular, employers must consider the different ways in which the virus can spread and put in place measures to either eliminate these risks or, if not possible, reduce these risks as much as is reasonably practicable.

Employers should share their risk assessments with their workforce and, if possible, publish these online (this is expected where an employer has more than 50 workers)

2. Who should go to work

Extra consideration should be given to individuals who are at higher risk of infection and/or of severe illness from COVID-19. Although those who are clinically extremely vulnerable are no longer advised to shield, employers should support these workers by discussing their individual needs and supporting them in taking any additional precautions set out in the guidance for people who are clinically extremely vulnerable.

Individuals who have symptoms of COVID-19, who test positive for COVID-19, who live in a household with someone who has symptoms (unless they’re exempt from self-isolation), or those who are contacted by NHS Test and Trace, must not come into the workplace and employers must enable them to work from home while self-isolating.

As of 16 August, employees who are fully vaccinated or under 18 years 6 months old are exempt from the need to self-isolate even if they’ve had close contact with someone who has COVID-19.

3. Ventilation

Employers should aim to identify occupied areas that are poorly ventilated and maximise the supply of fresh air to their premises. In poorly ventilated areas where ventilation can’t be improved, employers should consider restricting occupancy levels and the time spent in these areas.

Further guidance is set out on the HSE’s webpage concerning ventilation in the workplace.

4. Reducing contact for workers

Although social distancing guidance no longer applies, employers should still seek to reduce the number of people workers come into contact with. If possible, workstations should be assigned to an individual or, where this is not possible, steps should be taken to ensure that they are cleaned between use.

5. Reducing risk for customers, visitors and contractors

Employers need to provide clear guidance to those individuals who attend the workplace so that they understand what they need to do to maintain safety and reduce the risk of spreading COVID-19.

6. Cleaning the workplace

Much like in previous workplace guidance, there is still a need for frequent cleaning in the workplace. Particular attention should be paid to high-contact objects and enhanced cleaning procedures should be put in place for shared equipment.

7. Face coverings and PPE

Unless this is determined necessary by a risk assessment, employers are discouraged from using PPE unless in a clinical setting or responding to a confirmed case of COVID-19. Where face coverings are concerned, whilst they are no longer required by law, employers should consider encouraging the use of face masks, particularly in enclosed and crowded spaces.

8. Workforce management

Employers must ensure that workers understand and are kept updated about all COVID-19 safety measures. Furthermore, and in the event of an outbreak in the workplace, they need to have an up to date plan to deal with this. Ideally, employers should identify a single point of contact who has responsibility for taking the lead when contacting local public health teams. Other measures include the need to be able to identify any “close contacts” and ensuring that they self-isolate immediately (unless exempt from self-isolation because they are either fully vaccinated or under 18 years 6 months old), and also keeping up to date details of any symptomatic staff for local PHE teams.

9. Tests and vaccinations

Employers must continue to put measures in place to reduce the risk of COVID-19 transmission even if all workers have had a recent negative test, have received the vaccine, or have natural immunity. Although there is no requirement for employers to provide regular COVID-19 testing, where this is provided, employers must ensure this is carried out in a safe manner and in an appropriate setting in order to reduce the risk of transmission.

What should employers expect going forward?

Whilst the Governments latest guidance is not law, it will continue to be used as a benchmark by regulators, such as the Health & Safety Executive (HSE), when they are assessing whether employers are meeting their legal obligations under health and safety law. It is therefore imperative that employers continue to review and adopt this guidance in order to minimise the risk of transmission in the workplace and avoid the possibility of enforcement action such as “sending a letter, serving an improvement or prohibition notice, or bring a prosecution in cases where significant breaches are identified”.Although, in some quarters, the HSE have been accused of being a “soft touch” where COVID-19 is concerned, their public message is that they will continue to “treat the virus seriously to help control transmission in the workplace to avoid deaths, long-term illness and absenteeism.” As such, and notwithstanding that we have now moved into step 4 of the roadmap, employers should not be lulled into a false sense of security and they should expect HSE inspections to continue “until the public threat of coronavirus is deemed no longer a matter for health and safety regulation.”As it stands, the Government have already committed to carrying out a review of their workplace guidance in September 2021 as a means of establishing whether it is necessary to amend this in preparation for the Autumn and Winter months. Employers need to be mindful of this review, and any subsequent changes to the guidance, so as to ensure that their own approach to tackling the risks posed by COVID-19 remains “current” and in compliance with the law. 

Contact our Compliance & Regulatory team today if you require advice on how to remain “COVID-secure” or indeed any other issue concerning health and safety in the workplace.

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If you would like to talk through the consequences for your business, please email us and one of our team will get in touch.