COVID19 Employment Law Update #3

Protecting Employee Health & Safety During the Coronavirus Pandemic

(all articles are generalised opinions only and should not be treated or relied on as legal advice)

Personally dislike the term 'Health & Safety'. Not because there is anything inherently wrong with the term, but because of what it has come to represent in everyday circumstances.

Q: Can our kids climb the trees in the park?

A: Sorry, No. Health & Safety.

Q: Boss, can we set up a table tennis tournament in the breakout room?

A: Of course. Just fill out this 17 page Health & Safety questionnaire... in triplicate!

In Colchester, bin men & women were banned from wearing Santa hats for fear it would distract drivers!

'Health & Safety' nowadays holds connotations of complicated time consuming, soul-draining red-tape. That is why I prefer to speak about 'Welfare'.

When employers think about Health & Safety', they are reactive and protective, thinking primarily about how not to get sued. When they think about Employee Welfare, they are proactive and progressive, thinking about how to keep the workforce healthy and motivated.

Same coin. Different sides.

Under the Health & Safety at Work Act 1974 all employers have a duty to ensure 'the health, safety and welfare at work' of all their employees. Additionally, there are a whole sweep of rules and regulations to govern everything from adequate lighting to slipping and tripping hazards.

But during such an extreme pandemic, (perhaps especially because of it) employers should be thinking not just about what to do to protect themselves from legal liability, but what they can do to promote the morale and wellbeing of employees during a period that is inherently stressful.

Here are my answers to a few common questions during this period.

Question: Do we have to send employees home even if we need them at work?

There is currently no legislation or government mandate requiring employers to keep their employees away from the office. So technically, if an employer 'needs' its employees to attend work, they are legally entitled to require this.

However, every employer must consider if they genuinely 'need' employees to attend work or whether in fact the work can be done remotely.

Employees who are exposed to an increased risk of contracting the virus because they attend work (including because they have to take public transport to get there) might have a valid claim for damages against such an employer if they then catch that virus, or alternatively may be entitled to resign and claim constructive dismissal.

If an employer unavoidably requires its employees to attend work, it must take proactive steps to protect the health & safety of its employees and promote their welfare.

Question: What can we do to protect our employees if they are at work?

Glad you asked!

As an employer, you must take proactive steps to promote the welfare of your employees. In these circumstances, examples of steps an employer might take include:

  • carry out a risk assessment focused on the coronavirus in your specific workplace

  • institute formal hand washing, distancing, sneezing & coughing etc policies for all employees and make sure they are communicated and visible

  • introduce shift work, different working hours, altered work spaces where possible to reduce the numbers of staff present at any time

  • increasing cleaning & wipe down routines, including for equipment

  • provide masks, protective clothing where necessary, and sufficient hand sanitiser supply and ensure it is readily accessible

  • conduct daily temperature checks to identify employees beginning to show symptoms (though do note that you should get employee consent before doing so and protect any data collected)

  • take proactive steps to send any one home who shows the symptoms

  • appoint a coronavirus tsar responsible for keeping up to date with latest guidance and ensuring compliance with policies at work

  • limit travel to the absolute minimum

  • collate emergency contact details for every employee

  • identify employees specifically vulnerable (because of age or underlying health conditions or living with vulnerable people or people showing symptoms) and put in appropriate special measures to protect them

  • provide general access to any employee to raise and discuss their concerns

No one measure will do, rather as an employer you must take a holistic approach centered on the question - have we done all we reasonable should to protect our employees?

If employees are unavoidably public facing, these and other measures may be necessary. But probably most important is the enforcement of these procedures to ensure safety. It will not be enough to have a set of policies that the employer knows is not followed in practice.

Employers should engage with any relevant unions and also review their public and employee liability insurance and ensure it is fit for purpose.

Question: Are we liable for the health & safety for employees working from home?

If your employees are working remotely, that means that part of their home in which they are working is effectively a sanctioned workplace. Your duties as an employer will extend to protecting them in this workplace.

To a large extent you are entitled to rely on the common sense of your employee to arrange and manage their own home safely. Nevertheless, there are certain steps you should take.

  • create and send your employees a guide/checklist on safe home working set up and practices

  • recommend sufficient breaks and exercises

  • provide any necessary ergonomic equipment (keyboard, screen, mouse, chair etc)

  • recommendations of screen time limits

  • institute regular call ins to check up and assess the emotional wellbeing of employees

  • create and promote a clear work hours policy to prevent your employees from overworking (e.g. no work emails after 6pm)

Again, it is about thinking broadly about the circumstance and impact on employees when working from home for a prolonged period of time.

Question: do we have specific duties in relation to pregnant employees?

Pregnant women are designated as at specific risk during this coronavirus period. However, you cannot discriminate against pregnant women by having one rule for them and another for every other worker.

You cannot require a pregnant woman to self-isolate whilst requiring other employees to attend work. Nevertheless, an employer should consult with their pregnant employees and be ready to institute special protective methods where needed.

If a pregnant employee is advised by her doctor or the NHS to self-isolate, and home-working is not feasible, then she should be treated as being off work on full pay where possible or on contractual or statutory sick pay where not.

Question: How do I know an employee really is sick and not just using the opportunity to stay off work?

Since there is little opportunity for employees to see a doctor during this period, employers will generally have to rely on self-certification.

If an employer has good reason to believe that an employee is pretending to be sick, they can raise this with the employee and in extreme cases take disciplinary action. However, in these extreme circumstances I would suggest that there is little option but to take an employee on faith.

Those larger employers that have occupational health services can explore the option of providing video access to health professionals to their emoloyees.

Question: What about sick pay for employees who catch the virus?

Employees who are unable to work because of the virus are entitled to sick pay as normal. In this particular period, any employee that chooses to self-isolate even if not sick, is also entitled to statutory sick pay.

As far as contractual sick pay is concerned, this depends entirely on the particular terms of the contractual sick pay policy.

Employers should be alive to the risk that low sick pay provisions are likely to push employees to attend work even if not strictly needed. So, use of the furlough provisions should be considered.

Read more articles on employment law and the coronavirus here

Employment Law Update Coronavirus # 1

Employment Update Coronavirus #2

Employment Update Coronavirus #4

** (this article should not be taken or relied on as legal advice and it is important that you speak to a lawyer to get specific advice on your personal situation).

For more specific advice on employment law and the coronavirus pandemic, feel free to reach out to me through chambers.

Kolarele Sonaike

1 Essex Court

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