Returning to work as the lockdown is eased: what does this mean for employers?

Posted on May 14, 2020
Posted by Claire Woolf

On 11 May, the Government published a roadmap for a gradual easing of measures put in place to tackle COVID-19. One of the first steps in the roadmap, due to come into effect on Wednesday 13 May, was that staff who cannot work from home will now be encouraged to return to the workplace (if they work in a sector in which their workplace can open).

What does this mean for employers?

For many businesses, especially office-based businesses, there’s no change for now; the default position is that all staff who can work from home should continue to do so.

But for businesses that are re-opening their workplaces, there are lots of things to think about: from how to handle the health and safety of staff to how to deal with HR issues around continued absence and what to do if someone falls sick.

Returning to work after lockdown

We’ve rounded up answers to some of the key questions facing employers.

1. Can I now ask my staff to return to the workplace?

The default is that people should continue to work from home wherever possible; a return to the workplace should only be contemplated where their work cannot be done from home. 

If it is not possible for your staff to do their job from home, the Government has said that staff should now travel to work if their workplaces are open. Examples provided by the Government of relevant workplaces include food production, construction, manufacturing, logistics, distribution and scientific research in laboratories. Hospitality and non-essential retail are specifically excluded, as those sectors are still required to stay closed (a full list can be found here). 

If their staff must attend the workplace, employers have a duty to ensure it is safe; and the Government has said that if a workplace cannot be made safe, it should remain closed. 

The Government has produced detailed guidance for 8 different types of workplace; you should review those guides that are relevant to any workplace or workplaces that you run. You must carry out a risk assessment before you re-open and consult with your staff about the measures you plan to take. This is likely to include considerations about how your staff will travel to work, including whether they can avoid using public transport and/or travelling at peak times.  We have updated our Coronavirus Risk Assessment so that it covers the relevant points from the guidance.

 

2. What if I’ve furloughed my staff?

Furloughed staff are currently not allowed to do any work for their employer whilst on furlough leave, so you will need to end their leave before they come back to work (bear in mind that the Government has announced that, from August, furloughed staff will be able to return on a part-time basis prior to the scheme coming to an end at the end of October although it is anticipated that employers will be required to share the cost of furlough pay with the Government). Remember that the minimum period for furloughing staff is 21 days, otherwise you will not be able to claim back their pay through the Job Retention Scheme, so you will need to ensure this minimum period has elapsed before you recall them.

You can use our Furlough leave letter – return to work to confirm that their leave will end and that they will return to work on their previous terms and conditions of employment.

If staff have been furloughed for a significant amount of time, consider whether you need to conduct a re-onboarding process to ensure they are up to date with any new policies and procedures your business has put in place during their absence.

 

3. I want to re-open my workplace but at a reduced capacity, how should I deal with my staff?

If you furloughed your staff whilst the workplace was closed, there is nothing to stop you bringing some staff back whilst others remain furloughed, and/or rotating staff on and off furlough by putting staff back on furlough again whilst you take others off. You can use Agreement letter rotating back onto furlough leave; remember that an individual must remain on furlough leave for a minimum period of 3 weeks.

Bear in mind that from August, furloughed staff will be able to return to work on a part-time basis. If you need to make changes to staff member’s contracts now in order to reduce their hours, you are likely to need their agreement before you do so; see Changing or adding to staff contracts for further guidance.

 

 

4. What do I do about staff who are in clinically vulnerable groups or those who have been advised to shield?

If any of your staff fall within the Government’s ‘shielding’ scheme (ie because they are at very high risk of severe illness from coronavirus) they will have been asked to stay at home for at least 12 weeks, so will not be in a position to return to work. Such staff are entitled to sick pay or could, alternatively, be furloughed.

If you have any staff from the Government defined vulnerable groups (eg individuals with certain underlying medical conditions or those who are pregnant), be aware that they are advised to take extra care to abide by social distancing measures. You should make every effort to enable them to work from home, either in their current role or in an alternative role.

If this is not possible, the Government guidance says that they should be offered the option of the safest available on-site roles, which allows them to stay 2m away from others. You’ll need to carry out a risk assessment to assess the level of risk and whether it is acceptable; you can use our Coronavirus Risk Assessment. You should remember that some underlying medical conditions may amount to a disability, in which case you are required by law to make reasonable adjustments to enable those staff to continue working for you. See our Q&A on long-term sickness absence and disability for further guidance.

Bear in mind that in the case of a pregnant staff member, if the risk involved with her continuing in her current role is too high and no suitable alternative work is available, you must suspend her on full pay for as long as necessary to avoid the risk; see Risks to pregnant women and new mothers for more information.

 

5. How should I deal with a staff member who doesn’t want to come into work because they are concerned about the risk to themselves or a family member?

 

If your staff cannot work from home but they tell you that they do not want to come into work in case they catch coronavirus, the Government has suggested that you discuss working arrangements in order to come to an agreement.

You should discuss with them what measures you have taken to make the workplace safe, which will include going through the workplace risk assessment you have done. If they don’t consider the measures to be adequate, you should listen to any further suggestions they have and consider whether these could be accommodated or aim to come to an agreement, such as allowing them to take leave. You should handle such matters sensitively, remembering that your staff are living through an unprecedented crisis and bearing in mind that your obligations in respect of your staff members’ health extend to their mental health, including work-related stress and anxiety. 

The government has urged employers to take ‘socially responsible’ decisions when deciding how to deal with situations that cannot be resolved by agreement. Bear in mind that whilst you may be able to take disciplinary action against staff who refuse to come to work, employees who reasonably believe that to do so would place them in serious and imminent danger can claim unfair dismissal if they are dismissed for non-attendance (this right does not apply to non-employees, such as casual workers). They are also protected from being subjected to a detriment – such as not being paid – for this reason. Whether or not an employee would have a claim on these grounds will depend on the facts, but the best approach is to ensure you follow all relevant guidance to make the workplace safe and consult and collaborate with your staff throughout.

 

6. What should I do if my staff are unable to come to work because of a lack of childcare?

With a phased re-opening of schools and nurseries from the beginning of June, and a continued prohibition on family members in other households helping with childcare, this is likely to be an issue for many staff members.

Bear in mind that staff with caring responsibilities can be placed on furlough leave if they are unable to work; see our guidance on putting staff on furlough leave for more information.

Aside from this, staff who are employees are entitled to take a reasonable amount of time off work to deal with emergency situations involving their dependants, including disruption to childcare and caring for them when sick. You’re not legally required to pay them for this time off, but you may choose to do so and you should comply with any HR policy that you have in place (such as a carers’ leave allowance). Employees who are parents (provided they have been with you a year or more) can also take up to 18 weeks’ parental leave before their child’s eighteenth birthday; they can take up to 4 weeks per year per child. Again, this leave is unpaid unless you have a policy saying otherwise.

Other types of staff (eg casual workers, agency workers or freelancers) are not entitled to these  forms of leave (unless you have a policy which entitles them), therefore any time off will need to be agreed by you. Staff other than freelancers are entitled to annual leave, so you may require them to take this. For further guidance, see our Q&A on Time off for medical appointments and emergencies.

You should also consider whether you can temporarily agree to a flexible working arrangement with your staff members to help them to manage their competing responsibilities. 

 

7. Will I need to close my workplace again if a member of staff has or is suspected of having coronavirus?

No, although you should ensure that thorough cleaning takes place in accordance with the Government’s detailed guidance for 8 different types of workplace.

Any staff member who suspects they are sick with coronavirus should, of course, stay away from work and self-isolate, and they will be entitled to sick pay during this time.

 

8. If somebody contracts COVID-19 in the workplace, can I tell my other staff?

You owe a duty of care to your staff, so you ought to tell anybody who has come into contact with an infected person that they have done so, so that the necessary precautions can be taken; but you should provide the minimum information necessary, including the name of the person in most cases.

Health information about your staff constitutes sensitive personal data for the purposes of data protection law, which means you have enhanced obligations when you’re dealing with it. In particular, you are likely to need the explicit consent of the individual in question if you want to share any sensitive personal data about them. This means that you’ll need permission before naming an individual who has been infected with COVID-19 within your workplace or naming individuals who have pre-existing medical conditions (and you should in any event avoid doing so beyond a need-to-know basis). 

For guidance about your data protection obligations when handling health data, see our guidance on using personal data.


9. Can I require my staff to be tested for COVID-19?

In order to require staff to be tested for COVID-19, you will need to have a clear and justifiable reason for doing so and follow specific steps in order to comply with your data protection obligations, given that collection of health data about your staff is sensitive personal data. For many employers, it may be difficult to show that there is a strong enough reason to require testing, although as tests become more widely available, you and your staff member may unilaterally agree to it.

The ICO has produced guidance on the issue, and see When to use personal data for more detail about handling sensitive personal data.

Note that any of your staff who have symptoms are currently eligible to apply for a test if they cannot work from home.

 

10. How can I keep on top of developments?

The Government is updating its guidance regularly in response to the developing situation and employers should make sure they monitor this on a regular basis. As a starting point, the following websites provide helpful advice for employers:

 

The content in this article is up to date at the date of publishing. The information provided is intended only for information purposes, and is not for the purpose of providing legal advice. Sparqa Legal’s Terms of Use apply.