Coronavirus: Considerations for employers reopening the workplace

In a bid to get the UK back into work, Boris Johnson has been advising that employees can return to work at the discretion of employers. His suggestion that it is for employers to decide when to bring employees back to work potentially opens a can of worms for employers. The starting point is that in the current situation if employees can work from home, then they should. But not all employers and indeed many employees would want to do this.

Preparing the workplace for employees

Employers must undertake the following in line with COVID-19 guidance:

• The appropriate risk assessments
• Adjustments to workspaces for social distancing
• Organisation of PPE where necessary

They should also ensure they are observing all the latest updates to achieve adequate health-and-safety-at-work expectations for their employees: keeping workplace COVID-19 risk assessments under review; preparing individual risk assessments where required; and constantly monitoring wider COVID-19 developments.

What if an employee does not want to return to work?

If an employee is scared or does not want to travel to work, then the starting point is that they are not entitled to pay. If they don’t come to work, then that can be a disciplinary issue and they can potentially be fired if it is reasonable to do so.

Employees shouldn’t be furloughed if there is work for them to do. An employer can suggest adjustments to working hours to try to work around the employee’s concerns or may even suggest “flexible furlough” but these changes must all be agreed in writing. Such suggestions could be expected if the employee has a medical issue as a “reasonable adjustment” but depending on the nature of the medical issue the answer might after all be to continue furlough (whilst the furlough scheme is in place), go on sick leave or even to continue employment on unpaid leave.

What if an employee in the office is diagnosed with COVID-19?

If an employee is found to have contracted COVID-19, they should not be permitted to return to the workplace until a doctor or healthcare provider says that it is safe for them to do so. Employers also have duties of care to the staff with whom the infected employee has been in contact or with whom they may subsequently work in future.

They should therefore:

• Send the infected employee (or an employee displaying the symptoms of COVID-19) home and advise them to self-isolate, request a test and cooperate with contact-tracing arrangements following the Government guidelines in place at the time;
• Inform employees who have been in close contact with the individual that they may have been exposed to a colleague with COVID-19. Employers should not disclose the identity of that colleague for data privacy reasons – even if it is quite obvious who that person is;
• Disinfect and clean any areas used by that employee; and
• Consider asking employees who have been in close contact with the infected employee to not visit the office pending cooperation with contact tracers and test results and be extra vigilant in watching out for symptoms.

Where there is more than one COVID-19 infection connected with the workplace, employers are obliged to report the outbreak to the health authorities. Further guidance from the Government on working safely during coronavirus can be found here.

If you have any questions relating to the above, please do not hesitate to get in touch with David Jepps using the details below.