- Concerns, Confusion and the ‘Covid Secure’ Workplace

Back in July 2020, Prime Minister Boris Johnson advised that workers should “start to go back to work if [they] can” Whilst this advice has once again shifted (he is now saying that people should work from home again, where they can!), what is clear is that it is essential that employers are responsible for making workplaces ‘Covid secure’ when their workers are at work. 

In accordance with Government and HSE guidelines, the basics for creating a Covid-secure workplace involve: 

  • Risk assessing the working environment;
  • Ensuring adequate social distancing is possible;
  • Maintaining a clean and disinfected workplace;
  • Encouraging and providing for good hygiene practices amongst workers;
  • Consulting with workers on safety measures and working processes;
  • Identifying suitable flexible working arrangements (e.g: working from home); and
  • Supporting flexible working with appropriate technology and communication channels. 

However, employers have questioned how best to protect their most vulnerable workers and identify genuinely sick workers while reducing ‘opportunistic’ unauthorised absences.  Add this to the latest Government announcement that it is “once again asking office workers who can work from home to do so”, there has been an understandable level of confusion as to how they should indeed move forward.

 Where is an employer to start?  We hope to help in this month’s blog post. 

Supporting Vulnerable Workers 

Who is classed as a ‘vulnerable worker’? Through collective research it has been identified that higher risk groups are older males, those with a high BMI, those with health conditions such as diabetes and lung conditions, and some individuals from BAME backgrounds (black, Asian and minority ethnic).  At the time of writing there are no expectations for additional controls, but some workplaces have requested workers in these categories work from home.  This decision is down to the individual organisation, and whether it feels it can safeguard these groups sufficiently enough. 

‘Clinically extremely vulnerable’ workers are those at risk of severe illness from Covid-19.  This group of individuals were advised to ‘shield’ until it was paused on 1st August 2020, in England, when they were advised that they could return to the workplace, provided it is Covid-secure. Continuing to work from home whenever possible is still being advised, however.

Where a role doesn’t allow for working from home, employers could consider offering alternative duties temporarily.  Where this isn’t possible, everything ‘reasonably practicable’ should be done to protect the employee from harm.  This should be carried out in discussion with them, ensuring they are clear on what is being done and given the opportunity to forward their own ideas and share any concerns that they may have.

Pregnant Workers 

During Covid-19, pregnant workers are required to stick to strict social distancing, as some may be at greater risk of severe illness if they contract the virus.  Those most at risk, are classed as ‘clinically extremely vulnerable’, and as with those who had previously shielded, they can continue to attend the workplace if it is Covid-secure.  If not, they should work from home, whenever possible. 

If the employer cannot put the necessary protective measures in place and the role cannot be carried out from home, they should suspend the pregnant employee on paid leave, in line with normal requirements under regulation 16(3) of the Management of Health and Safety at Work Regulations 1999. 

Local Lockdowns 

‘Clinically extremely vulnerable’ workers who live in areas subject to local lockdown, are advised to stay at home and shield.  They should work from home if possible but should not attend the workplace if it is within the lockdown area. 

‘Clinically extremely vulnerable’ workers who live outside of the local lockdown area are entitled to request a shielding letter as proof that they cannot attend their workplace. 

Identifying The Malingerers 

When we first published this Blog on Monday 26th October, the text below, in red, was written based on the information available at the time on this very emotive subject. Since then we have received guidance from Daniel Barnett, renowned Employment Law Barrister for Outer Temple Chambers, that suggests a more cautious approach and one that we firmly believe needs to be shared.

Coronavirus: staying at home under s44 ERA

One of the biggest issues for employers right now is how to deal with employees who are anxious about coming into work.  No matter what precautions the employer has taken to make the workplace safe, if an employee reasonably believes there is serious, imminent danger to health if they come into work, they have a right to stay at home (and cannot be subjected to a detriment or dismissed).

But what about people worried about the commute rather than the workplace?  Are buses and trains covered?  If an employee is scared of travelling on the tube, and (probably reasonably, given so many don’t wear masks) fears serious and imminent danger to health, do they have a right to stay at home? (spoiler: I think the answer is ‘yes’).

Then the biggie: if they stay at home, are they entitled to full pay?  On the one hand, they’re not ready, willing and able to work, so they shouldn’t be entitled to any pay.  On the other hand, not paying them would be a detriment precisely because they’re exercising their right to stay at home; so they have an absolute right to be paid.  It’s a conundrum, and nobody knows the answer”.

[Some workers may feel they do not want to return to the workplace for an extreme fear of catching Covid-19.  It is the employer’s duty to listen to their concerns and take every step ‘reasonably practicable’ to resolve them and offer the reassurance required wherever possible.  This could include flexible working arrangements, such as working from home, or staggered start and leaving times to reduce contact with others.  If they still do not want to return to the workplace, the employer has the option of arranging that they take the time off as holiday or unpaid leave. Any one of these approaches is usually sufficient for bringing peace of mind to workers genuinely concerned about the safety of return to the office. 

And then there are the malingerers.

Prior to the pandemic, malingerers traditionally were workers who took time off work, citing illness or injury, but for whom the employer had grounds to believe their reason was not sound (i.e.: the illness was very mild, the explanation was contrived, they were spotted exiting an airport terminal in a sombrero and Bermuda shorts, etc).  With the arrival of the pandemic, there are now individuals who are riding the Covid-19 wave for all it’s worth, as an excuse to stay away from work.

In managing such cases, workers should be treated the same as prior to the pandemic. 

  • If the employee in question is not ill and hasn’t been advised to self-isolate, they are not entitled to Statutory Sick Pay (SSP);
  • If the employee says they have Covid-19 symptoms, you may require they take a Covid-19 test. They will need to self-isolate until these results are available – a time during which they are entitled to SSP;
  • If they refuse a Covid test but equally refuse to come to work, you have the option of withholding SSP;
  • A robust sickness reporting system, requiring the employee to report their absence on the first day, and every subsequent day until their return to the office, will also go a long way towards discouraging malingering behaviour. 

Many employers are naturally concerned about how to separate genuinely sick workers from malingerers and prevent unauthorised absence at this time, but due to the overwhelming nature and life-changing complications associated with the pandemic, when in doubt, prevention of the spread of Covid-19 should take priority. 

Consideration should also be given towards why someone may be displaying ‘malingerer’ tendencies (i.e.:  Is there a bullying issue in the workplace?) 

If the employee still refuses to attend work, and there is no medical reason they shouldn’t, disciplinary action may then be appropriate.] 

In view of Daniel’s latest thoughts on this, we would advise that you follow our original guidance but before taking any formal action, seek advice from an Employment Law specialist.

Do We Need To Close Our Offices Again? 

The Government’s recent U-turn on its advice has caused confusion amongst employers as to whether they should, or are allowed to, keep their offices open.  On 22 September, Prime Minister Boris Johnson stated; “in all professions where home working is not possible, such as construction or retail – people should continue to attend their workplaces”, but that his Government was now “once again asking office workers who can work from home to do so”.

Many organisations who had worked hard to become Covid-secure, started to question whether these steps needed to be abandoned, with a return to working from home.

However, legal experts have agreed that the statement is phrased as a request or guidance, meaning employers do not have to shut their offices.  Continuing to work in an office is not unlawful.  On this basis, the decision as to whether workers should be working from home, once again comes down to whether their workplace is Covid-secure, and whether they belong to a vulnerable group. 

In addition, many experts argue that working from home is not the ideal situation for everyone.  Some workers may not have the space, some may have young children, and some may find their productivity, morale and mental health is negatively affected by working from home.  For these individuals, going into the workplace, provided it is Covid-secure, may be the best option.

We hope this blog post has helped to answer any questions you may have been pondering or confusion you may have been experiencing!