Following the imposition of the lockdown due to the 2019 novel coronavirus disease (COVID-19), on 11 and 12 May 2020, the government published its plans for a phased recovery to work in England, including guidelines to support gradual workplace reopening (www.gov.uk/government/publications/our-plan-to-rebuild-the-uk-governments-covid-19-recovery-strategy).

Employers need to take a long-term perspective as this is proving to be a marathon not a sprint. This includes making reasonable efforts to facilitate home working as a first option, and only reopening workplaces where that is not possible. As important as it is to follow the rules, fundamentally this is a matter of showing care for colleagues and others. Clearly, the workplace will be a very different environment with a need for flexibility and patience. Just as employers will have supported their people through the mental health and wellbeing challenges of prolonged lockdown, they need to continue to do the same as colleagues undergo the stress involved in a phased or immediate return (see box “Checklist to support return to work planning”).

Employers have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees and anyone else who may be affected by the employer’s business. This includes undertaking regular risk assessments in consultation with any recognised trade unions or workers to identify COVID-19-related risks and appropriate measures to control those risks, and then reviewing them on an ongoing basis. Employees also have legal responsibilities to take reasonable care for their own and others’ health and safety, and to co-operate with their employer to help it meet its duties.

The government and Health & Safety Executive (HSE) have issued guidance and further guidance will be published for other sectors that are not currently open (www.gov.uk/guidance/working-safely-during-coronavirus-covid-19; www.hse.gov.uk/news/working-safely-during-coronavirus-outbreak.htm) (the guidelines).

The government guidelines currently highlight five key steps:

As part of the planning required, employers should look at producing a protocol, which reflects its COVID-19 risk assessment measures, the latest guidance and the employer’s key aims. A protocol might set principles to guide managers and include measures such as: training on protective behaviours; using personal protective equipment; undertaking regular health and safety inspections; carrying out health screening; ensuring social distancing; instituting regular cleaning and encouraging frequent hand-washing; avoiding or limiting business travel and in person meetings; limiting employees and visitors in the workplace; following guidance on the limited use of public transport; staggering commuting, shift or opening times; considering arrangements for queuing to enter premises; disabling touchpads and replacing with showing passes to security; reviewing the operation and use of refreshment areas; and cleaning washrooms and other common areas. Employers should ensure that any proposed measures are first consulted on with any union representatives or workers and are applied reasonably, fairly and consistently.

The guidelines stress the need to maintain social distancing in the workplace wherever possible; a radical re-think of the working environment is therefore necessary, including access, layout, and conditions of use.

The guidelines state that employers should share the results of their risk assessment with the workforce and there is an expectation that all businesses with over 50 employees should publish it on their website. Some employees may not want return to work due to health fears and, by involving any recognised unions or workers in risk assessment planning, and communicating openly with staff, employers can build trust, ensure a smooth transition back to work and reduce the risk of any employees having lawful grounds to refuse a return to work.

An employer may require staff to attend if:

Employers need to be careful to avoid making assumptions that could expose the employer to discrimination claims, such as whether an employee is ready or able to return, or making arrangements which unjustifiably and detrimentally affect some groups, such as those with caring responsibilities.

A phased or partial return to work will involve some selection of which employees return first. Employers should apply fair, objective criteria, such as business and skills-based criteria, when selecting employees to return and communicate the process and timescales.

Following the guidelines, addressing COVID-19 risks and communicating mitigating measures to employees will reduce the likelihood of any employee reasonably believing that returning to work may place them in serious and imminent danger to their health. Employers should plan how they will protect people who are at higher risk and, for the duration of the Coronavirus Job Retention Scheme (CJRS), they may be eligible for, or remain on, furlough (see feature article “Furlough and COVID-19: looking for clarity”).

Employers need to assess the risks for new or expectant mothers who may be entitled to fully paid suspension if suitable roles cannot be found. They should refer to the latest guidance, listen to employees’ concerns, try to find a resolution and keep records. However, if the employee does not have reasonable grounds for refusal and the employer has complied with health and safety duties and current guidance, employers should act carefully and sensitively, balancing individual employee support, employee relations risk and reputational aspects.

Employers should consider how breaches of requirements on social distancing and other health and safety policies should be treated and with what level of severity. Disciplinary procedures should be clear and well-communicated, and sanctions should be proportionate and consistent.

Depending on the method, it is likely that testing or screening will involve use of personal data, which should take account of data privacy requirements, and regulatory and government guidance, which is continually evolving. Specific advice should be taken as information about an individual’s health is a special category of personal data and should be processed only in limited circumstances.

In all cases, personal data collected and processed must be limited to what is necessary, in line with data minimisation requirements. In particular, a lawful basis is required for each purpose for which the personal data will be processed and an additional lawful basis is required for the processing of special category personal data. The applicable lawful bases in each case will be dictated by the circumstances. Relying on consent for staff screening is likely to be problematic and should be avoided.

Employers can ask staff to report through dedicated communication channels if they are infected or have been exposed to infection.

Sick workers should be actively encouraged to stay home and any incentives to return to work too early should be avoided to protect other workers and maintain trust. Policies should address how to deal with employees who appear sick on arrival at work or who fall sick during the day.

Despite taking all reasonable preventative measures, there will be a risk of infection among workers who have returned to work. While employers should act to prevent this happening in the first place, they should also have in place a rapid response plan for dealing with an outbreak before reopening.