Disclaimer: These FAQs are intended to provide information and guidance on the HR and employment law implications of the Covid-19 situation. They do not constitute legal advice and should not be relied upon as such.
Health and safety measures
Last updated: 09/11/2020
1. What businesses are required to close or remain closed? (Last updated 09/11/2020)
Certain non-essential businesses – primarily retail, hospitality and leisure establishments and providers of close contact services – are currently required to close or remain closed in England during the four week lockdown that runs from 5 November to 2 December. Businesses that are permitted to operate must put in place safety measures to ensure that they are Covid-secure – see question 2, below, for details.
Note that the devolved administrations in Scotland, Wales and Northern Ireland have separate powers over the lockdown measures in their respective nations. The guidance in these FAQs covers the position in England only.
2. What are the safety requirements for businesses that remain open? (Last updated 09/11/2020)
Businesses that have not been ordered to close, including manufacturers, have been permitted to continue operating throughout the coronavirus pandemic, provided they can do so safely. Some manufacturers have therefore remained operational, while others have closed, e.g. due to a reduction in demand for their products.
It is vital for all open businesses, whether they had previously closed or remained open throughout, to follow applicable Government guidance on working safely during the pandemic. The guidance that is most relevant to manufacturers focuses on work in factories, plants and warehouses. Employers will need to fully digest the guidance, which contains practical steps to enable employers to identify the risks that Covid-19 creates and to take pragmatic measures to mitigate them.
When considering what measures they need to put in place, it is important for employers to remember that the underlying law on employment, health and safety obligations and discrimination has not changed. Employers should therefore continue to comply with their legal obligations. The Government guidance on working safely during Covid-19 that is applicable to manufacturers is non-statutory, i.e. it does not have legal force. However, it will be necessary for employers to take this guidance into account when complying with their existing legal obligations – and indeed, the guidance refers to the legal requirements employers must follow under health and safety law. It is also important to note that the rules on self-isolation (including a prohibition on preventing others from self-isolating) do have legal force and employers can be fined for non-compliance – see further details below. In addition, there is a legal requirement to keep a record of staff and customer contact details if you operate a workplace canteen with a sit-in service – although note our comments on this in the context of the current national lockdown under question 7, below.
Employers will need to translate the guidance on working safely into specific actions – what actions are required will depend on the nature of the business, as well as its size, type and how it is organised, managed and regulated. Employers who have continued operating throughout the pandemic are likely to have gone through a lot of the required thinking already, but are encouraged to use the guidance to identify any further improvements they should make. Under this guidance, employers must make every reasonable effort to ensure their employees can work safely.
When lockdown measures first began to ease, the advice was that anyone who could work from home should continue to do so. From 1 August, the Government indicated that ‘working safely’ may mean working from home, but it could alternatively mean working in the workplace if Covid-19 secure guidelines are followed closely. On 22 September, the Government announced a further change of approach, recommending that workers who can work from home should do so once again, although emphasising that in cases where homeworking is not possible, people should continue to attend their workplaces. From 5 November to 2 December, England is in lockdown again and the advice is that people should stay at home except for certain specified purposes. One such permitted purpose is attending the workplace, where work cannot be done from home. However, employers should facilitate home working wherever possible. See the FAQs on ‘Managing employees during the pandemic’, for points you should consider in relation to temporary home-working arrangements. Note also that anyone who has symptoms of Covid-19, lives with/is in a support bubble with someone who has symptoms of Covid-19, has been advised to do so under the NHS test and trace programme has been advised to do so by a medical practitioner in advance of an operation, or is required to quarantine following return from overseas travel, must still self-isolate at home. If the reason for self-isolation is that they have tested positive for Covid-19 or been advised to self-isolate under the NHS test and trace programme, they can be fined for failure to comply with the rules – see the FAQs on ‘Employees unable or unwilling to attend work’, for details.
Below, we consider the main themes of the guidance on working safely in factories, plants and warehouses. The content set out below is accurate based on the guidance as at 9 November. We will endeavour to keep it up to date, but employers need to regularly check the guidance on the Government website, as it may well change as the pandemic continues to evolve. The Government has indicated that employers can check for updates here.
Priority actions to take
The guidance on working safely in factories, plants and warehouses opens with a section entitled “Priority actions to take – what businesses need to do to protect staff and customers”. This lists seven key steps that employers should implement:
- Complete a Covid-19 risk assessment and share it with your staff.
- Clean more often – especially surfaces that are touched frequently, and ask staff and visitors to use hand sanitiser and wash their hands frequently.
- Ask customers or visitors to wear face coverings where required to do so by law, although be aware that there are some exemptions.
- Make sure everyone is social distancing and make it easy for them to do so, e.g. using signs and a one-way system.
- Increase ventilation by keeping doors and windows open where possible and running ventilation systems at all times.
- Take part in NHS Test and Trace by keeping a record of all staff, contractors and visitors for 21 days.
- Turn people with coronavirus symptoms away from your premises, as they should be self-isolating.
These steps are explained in greater detail in the guidance and we cover them further below.
With regard to the recommendation to take part in NHS Test and Trace by keeping a record of staff, contractors and visitors, we note that the guidance states that “this will be enforced in law” from 18 September. However, it appears from the relevant regulations that the legal requirement to keep records of staff, contractors and visitors only applies in the hospitality, leisure and tourism sectors and to providers of close contact services such as hairdressers, beauticians, etc. We assume that the reference to legal enforcement appears in the guidance for factories, plants and warehouses because the seven key steps listed in the “Priority actions to take” section have not been tailored by sector. Although manufacturers are not legally required to keep records of staff, contractors and visitors for the purpose of assisting NHS Test and Trace (save in relation to a workplace canteen – see question 7), it may still be a sensible step to take. We discuss this further below, under ‘Customers, visitors and contractors’ and ‘Shift patterns and working groups’.
- Only use PPE where appropriate – when managing the risk of Coronavirus, additional PPE beyond what you usually use is not beneficial in most situations.
- Work with the same team every day, using fixed teams or shift patterns to reduce the number of people each person has contact with.
- Arrange work spaces to keep staff apart, for example by using barriers between workstations or back-to-back or side-to-side working.
- Take care with inbound and outbound goods, minimising deliveries and frequency of handling.
- Keep music and other background noise to a minimum to prevent people from speaking loudly or shouting.
These points are also expanded upon below.
Risk assessments and consultation
Employers should ensure the safety of the workplace by:
- carrying out a risk assessment in line with the Health and Safety Executive (HSE) guidance;
- consulting with your workers or trade unions; and
- sharing the results of the risk assessment with your workforce and on your website.
These essential steps are explained in detail in the guidance on working safely in factories, plants and warehouses.
The guidance highlights the duty employers have under health and safety law to do everything reasonably practicable to minimise risks to their staff. It does acknowledge, however, that it will not be possible for employers to completely eliminate the risk of Covid-19.
Note that the guidance also provides that you should share the results of your risk assessments with your workforce and recommends that you consider publishing them on your website, noting that employers with 50 or more employees will be expected to do this. Some employers may be reluctant to publish their full risk assessments on a public-facing website, since doing so could invite detailed scrutiny, and perhaps unfair criticism, from those who are not familiar with the business or its health and safety processes. Employers may therefore take the view that the guidance’s recommendation to publish the “results of” a risk assessment enables them to limit publication to a summary only. One positive aspect of publishing your risk assessment, or a summary of it, on your public-facing website is that it could reassure those with whom you do business that you have safe systems of work in place. It is important to note that the guidance requires that employees should be involved in assessing workplace risks and that you should share the results of your risk assessment with your workforce. Full involvement of your employees creates a culture of confidence where relationships between employers and workers are based on collaboration, trust and joint problem solving. The guidance indicates that employers should demonstrate to their workers that they have properly assessed their risks and taken measures to mitigate them, and suggests displaying a notification in a prominent place in the workplace to do so.
The HSE has produced guidance on talking with your workers about working safely during the coronavirus pandemic. This guidance notes that as well as consulting with workers (or their union or health and safety representatives) before a return to the workplace, you may need to revisit your discussions with them soon after return to make sure that health and safety measures are working and are being followed. The guidance also provides some suggested questions you may find it helpful to ask staff/their representatives to consider during any consultation.
In common with the HSE guidance, the Government guidance on working safely in factories, plants and warehouses flags that your risk assessments should be reviewed from time to time to make sure that the measures you have put in place are working, or if there are changes in the workplace that could lead to new risks.
Note also that the Government guidance on working safely in factories, plants and warehouses highlights the HSE’s power to take enforcement action where an employer fails to complete a risk assessment which takes account of Covid-19, or completes a risk assessment but fails to put in place sufficient measures to manage the risk of Covid-19.
Who should come to work
When considering who should come to work, employers are encouraged to ensure that workplaces are safe while also enabling working from home (particularly during the period of national restrictions (lockdown)). The guidance on working safely in factories, plants and warehouses reflects the Government's advice that everyone who can work from home should do so, but those who cannot work from home can still go to their place of work. However, clinically extremely vulnerable individuals are strongly advised to work from home during the period of national restrictions (lockdown). If they cannot work from home, they should not attend work for this period.
The guidance recommends that employers consult with their employees to determine who needs to come into the workplace. Employers should give extra consideration to those people at higher risk.
Where it is decided that employees need to come into the workplace then this will need to be reflected in the employer’s risk assessment (see above) and the employer will need to take appropriate actions to manage the risks of transmission in line with the Government guidance.
The guidance emphasises the importance of employers engaging with employees to ensure they feel safe returning to work, and notes that they should not force anyone into an unsafe workplace.
Where possible, employees should work from home. In this regard, the guidance on working safely in factories, plants and warehouses notes that employers should:
- monitor the wellbeing of employees who work from home and help them to stay connected to the rest of the workforce (especially where the majority of their colleagues are on-site);
- keep in touch in relation to their welfare, mental and physical health and personal security; and
- provide all necessary equipment for people to work from home safely and effectively (including, for example, remote access to work systems).
- Consider the maximum number of people who can be safely accommodated at the workplace.
- There is a report by Public Health England that shows that certain groups of people may be more at risk of contracting Covid-19, or of suffering serious illness if they do contract it. Higher risk groups identified in the report include: older males; those who have a high body mass index (BMI); those with health conditions such as diabetes; and individuals from some Black, Asian or minority ethnic (BAME) backgrounds. The guidance highlights that employers should consider this as part of their risk assessment, but does not go so far as to recommend that employers avoid having these higher risk individuals in the workplace at all.
- As noted above, individuals who are clinically extremely vulnerable are strongly advised to work from home during the period of national restrictions (lockdown). If they cannot work from home, they should not attend the workplace for this period.
- Those living with clinically extremely vulnerable individuals who are not clinically extremely vulnerable themselves can still attend work if they cannot work from home, in line with the current lockdown rules.
- As noted above, anyone who has symptoms of Covid-19, lives with/is in a support bubble with someone who has symptoms of Covid-19, or has been advised to do so under the NHS test and trace programme, must still self-isolate at home in accordance with Government guidance. (In addition, anyone who returns to the UK from abroad is required to self-isolate for a 14 day quarantine period unless an exemption applies - and they can be fined for non-compliance - see our FAQs on 'Managing employees during the pandemic'). From 28 September, it is also a legal requirement for individuals who have tested positive for Covid-19, or who have been instructed to self-isolate under the NHS Test and Trace programme, to self-isolate and they can be fined if they do not do so. In addition, the relevant regulations require individuals who are required to self-isolate because they have tested positive for Covid-19, been advised to self-isolate under the NHS test and trace programme, or have to self-isolate following overseas travel and who are due to work during the self-isolation period to inform their employer of the self-isolation requirement as soon as reasonably practicable and in any event before they are next due to work. It is an offence punishable by a fine for an employer who is aware of an individual’s requirement to self-isolate knowingly to allow the individual, for any purpose relating to their employment, to attend any place other than the place where the individual is self-isolating. Company directors can be personally liable if the offence is committed with their consent or connivance or is attributable to their negligence. Fines will start at £1,000 but could increase up to £10,000 for repeat offences and for the most egregious breaches. Note that, when the Government announced these changes, it indicated that preventing others from self-isolating would be seen as an egregious breach, giving the example of a business owner who threatens self-isolating staff with redundancy if they do not come to work. In view of this, the guidance on working safely in factories, plants and warehouses highlights that employers must enable workers to work from home while self-isolating if appropriate and must not knowingly require or encourage someone who is being required to self-isolate to come to work. It also emphasises the importance of employers ensuring that any workers who have symptoms of Covid-19 self-isolate for at least 10 days from when the symptoms started and flags that a worker who tests positive while asymptomatic but then develops symptoms during self-isolation must restart the 10 day isolation period from the day their symptoms began.
- You must understand and take account of your specific legal obligations to those with protected characteristics (i.e. age, disability, gender reassignment, marital/civil partnership status, race, religion or belief, sex, sexual orientation and pregnancy/maternity). In particular, you should involve and communicate appropriately with workers whose protected characteristics might expose them to a different degree of risk, or might make any steps you are considering taking inappropriate or challenging for them. You should consider whether you need to put in place any particular measures or adjustments to take account of your duties under the equalities legislation – for example, making reasonable adjustments to avoid disabled workers being put at a disadvantage and making sure that the steps you take don’t have an unjustifiable negative impact on some groups compared to others.
When considering the above, it is also worth taking account of the Equality and Human Rights Commission’s guidance on avoiding discrimination when making decisions in the context of Covid-19, e.g. in relation to which employees are required to come in to work, or what working arrangements you put in place.
Social distancing at work
Social distancing in the workplace (2m, or 1m with risk mitigation where 2m is not viable) must be maintained wherever possible. The points we discuss below are dealt with in detail in the guidance on working safely in factories, plants and warehouses.
The guidance flags that social distancing requirements apply to all parts of your business, not just employees’ workstations. Areas such as entrances, exits, toilets, break rooms, canteens and similar settings are often the most challenging areas to maintain social distancing.
Where it is not possible to follow social distancing guidelines in full in relation to a particular activity, you should consider whether that activity must continue if the business is to continue to operate. If so, the guidance indicates that you must take all mitigating actions possible to reduce the risk of transmission between staff.
Such actions could include:
- further increasing the frequency of hand washing and surface cleaning;
- keeping the activity time involved as short as possible;
- using screens or barriers to separate people from each other;
- using back-to-back or side-to-side working (rather than face-to-face) whenever possible; and
- reducing the number of people each person has contact with by using ‘fixed teams or partnering’ (so each person works with only a few others).
In order to maintain social distancing and reduce risk on arrival and departure, the guidance recommends:
- staggering arrival and departure times to reduce crowding at entrances and exits;
- providing extra parking spaces, or facilities such as bike racks, to help people travel to work on foot or by bike where possible;
- limiting passenger numbers in company vehicles such as a work minibus – potentially by leaving some seats empty;
- using additional entrances and exits to reduce congestion;
- operating a one-way system at entry and exit points, using floor markings to identify this;
- providing handwashing facilities or hand sanitiser at entrances and exits; and
- maintaining use of security access devices such as keypads or passes but adjusting processes at entry and exit points to reduce the risk of transmission, e.g. cleaning pass readers regularly and asking staff to hold their passes above pass readers rather than touching them.
When moving around the workplace, the guidance suggests the following steps to help maintain social distancing:
- discouraging non-essential travel around the site by restricting access to certain areas or encouraging the use of radios or telephones (and cleaning them between use);
- reducing job and equipment rotation;
- operating one-way flow through buildings and regulating the use of high traffic areas such as corridors and walkways;
- encouraging the use of stairs, reducing maximum occupancy for lifts (while ensuring that people with disabilities can still access lifts) and providing hand sanitiser for the operation of lifts; and
- reducing occupancy of vehicles used for on-site travel such as shuttle buses.
With regard to social distancing at workstations, the guidance recommends:
- assigning a workstation to individual employees if possible – or, if sharing is necessary, ensuring that workstations are shared by the fewest people possible;
- reviewing layouts and processes to allow people to work further apart from each other;
- using floor markings to help employees maintain social distancing (2m, or 1m with risk mitigation where 2m is not viable);
- if it is not possible to move workstations further apart, implement working side-by-side or facing away from each other rather than face-to-face, and install screens to separate employees; and
- if employees have to work closely together, e.g. in lifting or maintenance activities that require two people, use a consistent pairing system to ensure employees come into contact with as few people as possible.
Social distancing should also be maintained in meetings, wherever possible. The guidance suggests:
- using remote working tools to avoid in-person meetings;
- only having necessary participants attend meetings and maintaining social distance throughout (2m, or 1m with risk mitigation where 2m is not viable);
- avoiding sharing pens and other objects;
- providing hand sanitiser in meeting rooms;
- holding meetings outdoors or in well-ventilated rooms; and
- using floor markings to help people maintain social distancing in areas which are regularly used for meetings.
It can be tricky to maintain social distancing during staff break times. To assist with this, the guidance recommends:
- staggering break times to reduce pressure on break rooms and places to eat;
- using safe outside areas for breaks;
- creating additional break room space by using other parts of the site, or areas that may have been freed up if you have some staff working remotely;
- using protective screens for staff in reception and other common areas;
- providing packaged meals to avoid opening staff canteens if you can;
- reconfiguring seating areas to maintain distance and reduce face-to-face interactions;
- encouraging employees to remain on-site during working hours; and
- considering the use of floor markings and signage for common areas such as toilets, lockers, etc. and other areas where queues typically form.
The guidance acknowledges that it may be unsafe for people to comply with social distancing guidelines in an emergency situation such as an accident or a fire and states that safety should be the priority during such incidents. It does, however, emphasise that people involved in assisting others should pay special attention to hygiene measures afterwards, including washing their hands. The guidance recommends that employers review their incident and emergency procedures to ensure they reflect social distancing principles as much as possible, but flags that any changes to such practices may present new or altered security risks that may need to be mitigated.
Customers, visitors and contractors
In order to ensure visitors understand what they need to do to stay safe on your site, the guidance on working safely in factories, plants and warehouses advises that you provide clear guidance on social distancing and hygiene to visitors – both via phone or email before they arrive, and via signage on arrival. It also recommends establishing host responsibilities relating to Covid-19 and providing training to staff who act as hosts for visitors.
Cleaning and ventilation in the workplaceIf your workplace has been closed, you will need to assess all parts of the site and take certain steps before you can reopen. These include checking whether you need to adjust your ventilation system to ensure it doesn’t automatically reduce ventilation if your occupancy levels are lower than normal. Although most air conditioning systems do not need adjustment, you may need to seek advice from an engineer, particularly if your system serves multiple buildings.
It is also important to maintain good ventilation in the work environment, for example by:
- adjusting fan speeds to increase ventilation rates;
- operating your ventilation system when there are people in the building;
- monitoring and managing filters in accordance with manufacturer instructions;
- keeping windows and doors open, if possible; and
- using ceiling fans or desk fans to improve air circulation, provided there is good ventilation.
- using signage and posters to remind employees to wash their hands regularly and thoroughly, avoid touching their face, etc;
- providing hand sanitiser in multiple locations around the workplace and providing hand drying facilities – either paper towels or hand dryers – at hand washing facilities, as well as more waste facilities and frequent rubbish collection;
- establishing use and cleaning guidance for toilet facilities, as well as any showers, lockers and changing rooms, to ensure they are kept clean and clear of personal items and to maintain social distancing as much as possible;
- enhancing cleaning for busy areas and for all shower and changing facilities both during the day and at the end of the day; and
- providing extra non recycling bins for workers and visitors to dispose of single use face coverings and PPE, following applicable guidance on how to dispose of personal or business waste.
Earlier sector specific guidance for manufacturers had recommended pausing production during the day to allow cleaning staff to wipe down workstations with disinfectant. This guidance is no longer available online, but some employers may still find this suggestion helpful.
It is also worth noting the NHS guidance on hand washing and hygiene, which you may wish to highlight to your employees.
If you are cleaning following a known or suspected case of Covid-19 in the workplace, then you should refer to the specific guidance on cleaning in non-healthcare settings.
Personal Protective Equipment (PPE) and face coverings
The guidance on working safely in factories, plants and warehouses states that where you already use PPE in your work activity to protect against non-Covid-19 risks, you should continue to do so.
However, PPE beyond what employees usually wear is not beneficial. This is because Covid-19 is a different type of risk from the risks normally faced in a workplace and (other than in clinical settings such as hospitals, for specific roles for which Public Health England advises the use of PPE, or when responding to a suspected or confirmed case of Covid-19) this risk needs to be managed through social distancing, hygiene and fixed teams or partnering, not through the use of PPE.
Unless your risk of Covid-19 transmission is very high, the guidance considers the role of PPE in providing additional protection to be very limited. However, if your risk assessment concludes that PPE is required, then you must provide it free of charge to workers who need it and ensure it fits properly.
The guidance acknowledges that there is growing evidence that wearing a face covering in an enclosed space helps protect individuals and those around them from Covid-19. However, it notes that a face covering is not an alternative for employees who wear a visor in close contact services and flags that a face covering is different from the surgical masks used in healthcare settings and from the PPE used to manage dust and spray risks in factories. The guidance takes the view that face coverings are not a replacement for other ways of managing risk, such as minimising contact with others and enhancing cleaning processes.
Wearing a face covering is required by law when travelling as a passenger on public transport in England and in a variety of indoor premises, unless an exception applies. (Exceptions include where: an individual is unable to put on, wear or remove a face covering because of a physical or mental illness, impairment, or disability; putting on, wearing, or removing a face covering would cause an individual severe distress; or someone is travelling with or providing assistance to a person who relies on lip reading to communicate. The full list of exceptions is included in the Government guidance on face coverings).
In other circumstances, wearing a face covering is encouraged in enclosed public spaces where individuals encounter people they do not normally meet, but is not required by law. The guidance on face coverings notes that - in respect of indoor settings where staff are not required by law to wear face coverings - employers should assess the use of face coverings on a case by case basis depending on the workplace environment, other appropriate mitigations they have put in place and whether reasonable exemptions apply. It also encourages employees to follow guidance from their employer based on a workplace health and safety assessment.
If employees choose to wear a face covering, employers should support them to do so safely, including by reminding employees to:
- wash their hands before putting on the face covering and after taking it off and avoid touching their face;
- change the face covering daily, or if it becomes damp or they have touched it;
- wash the face covering in accordance with the manufacturer’s instructions or, if it is not washable, dispose of it carefully; and
- practise social distancing wherever possible.
The guidance also highlights the need to be mindful that the wearing of a face covering may inhibit communication with people who rely on lip reading, facial expressions and clear sound.
Shift patterns and working groups
The guidance on working safely in factories, plants and warehouses includes a brief section on shift patterns and working groups, highlighting the importance of organising work in such a way as to reduce the number of contacts each employee has. It recommends fixing teams or shift groups as far as possible to ensure that any unavoidable contact happens between the same people. It suggests finding ways to remove direct contact where employees have to pass things to each other, e.g. by using drop-off points or transfer zones. The guidance also advises employers to assist the NHS test and trace programme by keeping temporary records of staff shift patterns for 21 days so that this data can be shared with NHS test and trace if necessary to help contain clusters or outbreaks. For details of how to collect the relevant data, it links out to another piece of Government guidance on collecting data from staff and visitors. That guidance is primarily directed at businesses in the hospitality, tourism and close contact services sectors that have large numbers of customers visiting their premises, and are legally required to collect customers’ details, but manufacturing employers may find it helpful to refer to when putting in place systems to record staff details.
Note that earlier, more general employer guidance flagged that structuring working hours into staggered shifts would help to enable employees to maintain social distancing and reduce the need for employees to use public transport during peak hours (see question 3, below, for more information on travel to work). It also suggested practical measures such as splitting staff into teams with alternate days working from home, or splitting across a day and night shift and spreading out standard processes, so that only one team needs to be on the premises to complete a task at a given time. That guidance is no longer available online but the suggestions it made may still be helpful.
Avoiding raised voices
The section of the guidance on managing risk includes a paragraph flagging that employers should ensure that steps are taken to avoid people needing to unduly raise their voices to each other in the workplace. This includes, but is not limited to, refraining from playing music or broadcasts that may encourage shouting, including if played at a volume that makes normal conversation difficult. This is because of the potential for increased risk of transmission, particularly from aerosol transmission.
Outbreaks in the workplace
The guidance notes that, as part of your risk assessment, you should have a plan in place in case there is a Covid-19 outbreak in your workplace. Where possible, the plan should nominate a single point of contact who can take the lead on contacting local Public Health England health protection teams.
If there is more than one case of Covid-19 associated with your workplace, you should contact your local PHE health protection team to report the suspected outbreak.
If the local PHE health protection team declares an outbreak, you will be asked to record details of symptomatic staff and assist with identifying contacts. It is therefore important you ensure that all employee records are up to date – that includes not only contact details but also information on employees’ shift patterns, so that you can identify who may have been in the workplace at the same time as anyone who has tested positive (see ‘Shift patterns and working groups’, above). The PHE team will provide you with information about outbreak management, to help you implement control measures, communicate with staff and reinforce prevention messages. (See also question 4, below).
Work-related travelThe guidance on working safely in factories, plants and warehouses specifies that unnecessary work travel should be avoided. Where work travel is necessary, employers should take steps to keep employees safe. The guidance reminds employers that employees should aim to walk or cycle where possible, but that they can use public transport or drive if walking or cycling is not possible.
You should minimise the number of people who aren’t in the same household/support bubble travelling together in a single vehicle, increase ventilation where possible and avoid them sitting face to face. You should also ensure that any shared vehicles are cleaned between shifts or on handover.
Any overnight accommodation used by employees travelling for work must meet social distancing guidelines and employers should centrally log details of the stay.
Communications and trainingIt is imperative that all employees understand your Covid-19-related safety procedures. Accordingly, where employees are returning to work after time away, e.g. while your business was closed, or if they were off sick, you will need to develop communication and training materials for them to engage with before their return.
You should minimise face-to-face communication, using alternatives such as signage, to explain any changes to production schedules, breakdowns, etc.
Consider communicating your procedures to suppliers, customers and trade bodies to help their adoption and share your experiences.
Inbound and outbound goods
Keeping up to date
It is important to regularly check the Government guidance on applicable safety measures, as this may well change as the pandemic evolves. The Government has indicated that employers can check for updates here. In addition, given the potential for the guidance to change over time, if you make a decision based on the guidance available on a particular date, we would recommend that you download and keep a copy of that guidance so that you have access to it if you need it in the future, e.g. if an employee questions why a particular safety measure is required, or why you have not taken a particular step.
3. What is the advice on ensuring that employees can travel to work safely? (Last updated 09/11/2020)As noted above, businesses that are able to continue to operate safely can remain open – and can require employees to attend the workplace if they cannot work from home and the workplace is Covid-secure.
An employer would not normally be expected to include an employee’s commute to work in its health and safety risk assessment, other than for a mobile worker. However, in these unprecedented times, this is something that employers should consider because the mode of transport an employee uses to get to work may impact on their health while they are at work and thus potentially increase the risk of transmission of the virus in your workplace.
In this regard, it is worth noting that the guidance on travel recommends that employees should travel to work on foot, or by bicycle if they can, but it makes clear that public transport can be used to travel to work if necessary. The use of face coverings is mandatory on public transport and in the enclosed areas of public transport hubs (i.e. airports, rail and tram stations, coach and bus stations, maritime ports and terminals) unless an exception applies. The guidance suggests safety precautions that individuals can take when using public transport, such as maintaining social distancing, washing or sanitising their hands regularly and avoiding peak travel.
4. What if someone with Covid-19 comes to work? Do we need to close the workplace? And do we need to tell our staff about the incident? (Last updated 07/10/2020)If someone with Covid-19 comes to work, you do not necessarily need to close your workplace. You should in these circumstances implement the plan you put in place as part of your risk assessment (see question 2, above, under the heading ‘Outbreaks in the workplace’) and follow the Government guidance on cleaning and decontaminating your workplace.
- must avoid individuals who are at high-risk of contracting Covid-19, for example, because they have pre-existing medical conditions, such as respiratory issues;
- must take extra care in practising social distancing and good hygiene and in watching out for symptoms; and
- will be better prepared if the person who has symptoms has a positive test result and if they (the contact) receive a notification from the NHS test and trace service explaining they need to self-isolate.
When someone is advised under the NHS test and trace programme that they must self-isolate because they have been in contact with a person who has tested positive for coronavirus, they will be entitled to SSP (and company sick pay if applicable) during their self-isolation – see the FAQs on ‘Employees unable or unwilling to attend work’ for more details. Note that from 28 September, it is a legal requirement for individuals who have tested positive for Covid-19, or who have been instructed to self-isolate under the NHS Test and Trace programme, to self-isolate and they can be fined if they do not follow the rules. As explained at question 2 above, (under the heading 'Who should come to work'), employers commit an offence punishable by a fine if they knowingly allow an individual who is required to self-isolate to attend the workplace. Fines will start at £1,000 but could increase up to £10,000 for repeat offences and for the most egregious breaches - which may include preventing others from self-isolating. The self-isolation rules are now being enforced more strictly, with NHS Test and Trace call handlers making regular contact with those self-isolating, with the ability to escalate any suspicion of non-compliance to local authorities and local police.
The guidance for employers on the NHS test and trace programme and the guidance on working safely on factories, plants and warehouses specify that if there is more than one case of Covid-19 associated with a workplace, you should contact your local PHE health protection team to report the suspected outbreak. The heath protection team will:
- undertake a risk assessment;
- provide public health advice; and
- where necessary, establish a multi-agency incident management team to manage the outbreak.
5. Can we require employees to be tested for Covid-19 as part of our workplace safety measures? (Last updated 08/10/2020)
In order to avoid exposing their workforce to Covid-19, employers may wish to require employees to undergo tests on a periodic basis to check they do not have the virus.
Anyone with symptoms of Covid-19 can apply to get tested and employers can refer employees for priority testing if they are on the essential workers list (which includes, for example, critical personnel in the production and distribution of food, drink and essential goods) and are having to self-isolate because they or someone in their household/support bubble have symptoms. Government guidance provides further details on access to testing, who counts as an essential worker, etc.
However, in order to avoid exposing their workforce to Covid-19, employers may wish to require employees to undergo tests on a periodic basis to check they do not have the virus, even if they are asymptomatic.
As tests for Covid-19 are now being more widely developed, private healthcare companies are offering testing services to employers. The Government has produced guidance highlighting the issues employers must consider when seeking to implement such testing. This guidance includes useful information about the practicalities, such as on selecting, procuring and transporting test kits. The guidance also notes that employers must always comply with their employment law and data protection obligations. It strongly advises employers establishing an internal testing programme to communicate to their employees clear information on:
- why they are setting up a testing programme;
- whether the programme is voluntary or mandatory and what the consequences are for employees who decline to take part in the testing programme (on which see further below) or to share the result of a test with their employer;
- where employees can seek advice on their rights throughout the process;
- whether employees will have the opportunity to discuss the collection of such data if they have any concerns; and
- next steps for employees after they receive their test result.
The guidance also recommends that employers consult with relevant staff forums or unions ahead of implementing any internal testing policy.
When deciding how often to test employees, the Government’s practical guidance (set out in an Annex to the main guidance on employee testing) recommends that employers take into account:
- how prevalent the virus has been amongst their employees;
- whether the workplace setting provides a particular risk of transmission (for example low levels of ventilation, working in unavoidable close proximity, or other risk factors);
- the risk profile of those in the workplace (e.g. older people and people with underlying health conditions are at greater risk); and
- the sensitivity of the test being used (the testing provider will be able to advise on this).
However, in the unprecedented circumstances of the Covid-19 pandemic, requesting that all staff undergo testing on a periodic basis may potentially be deemed reasonable to help the employer to protect the health and safety of all employees, even if such testing is not provided for in contractual documentation. In practice, employees may be reassured that the employer is taking such steps to protect their health in the workplace and many are likely to accept that such testing may be a necessary precaution in current circumstances.
That said, it is important to bear in mind that testing employees for Covid-19 on a periodic basis cannot be viewed as a substitute for other necessary health and safety measures to reduce the risk of Covid-19 in your workplace – see question 2, above, for details.
In the event that an employee refuses to be tested, we would recommend the employer to have a constructive discussion with the employee, explaining why testing is considered necessary and seeking to understand the employee’s reasons for refusal. There may potentially be grounds for disciplinary action in such a case, but we would recommend that employers seek advice before acting.
From a data protection perspective, the result of a Covid-19 test would constitute special category data as it is data concerning health. Employers wishing to require employees to undergo Covid-19 testing at the workplace should take into account the data protection considerations identified in the FAQs on ‘Data protection during the pandemic’, regarding who has access to the data, conducting a data protection impact assessment, updating data protection policy documents and providing appropriate privacy notice information.
With regard to test results, the Government guidance on employee testing notes that employers can use these to understand who in their workforce currently has Covid-19 and needs to self-isolate following a positive virus test. They can also use antibody tests to understand the percentage of their workforce who have already potentially had Covid-19. However, employers cannot use test results for any purpose that employees were not told about in advance or would not reasonably expect. It is also important for employers to ensure that employees are not treated unfairly or detrimentally as a result of having a positive or negative antibody or virus test and they should not assume that employees with a positive antibody test are immune to Covid-19.
Note that towards the start of the pandemic, when Covid-19 tests were not widely available, some employers opted to carry out temperature testing on employees before allowing them into work. However, temperature testing is not fool-proof, as an employee may have taken paracetamol before coming to work, which could have lowered their temperature. The Government guidance therefore focuses instead on “Covid-19 testing”. With regard to temperature testing, it states that “As the Medicines and Healthcare products Regulatory Agency (MHRA) has set out, there is little scientific evidence to support temperature screening as a reliable method for detection of COVID-19.” That said, some employers might still wish to conduct temperature testing on entry to the workplace as a precautionary measure, so that they can send any employee with a high temperature home to self-isolate and encourage them to get tested. Employers who do choose to do this should note that the contractual, employee relations, health and safety and data protection considerations would be similar to those described above.
5(a). Can we establish our own internal contact tracing system? (Last updated 21/09/2020)
Employers that implement a workplace Covid-19 testing programme (see question 5, above) may also want to introduce their own internal contact tracing system. The Government guidance for employers on workplace testing acknowledges this as a possibility, but notes that employer-led internal tracing systems can never be a substitute for NHS Test and Trace and that an employer that identifies more than one case of Covid-19 on its premises must always report the suspected outbreak to the appropriate authority (see question 2, above, under the heading ‘Outbreaks in the workplace’).
When developing a workplace contact tracing system, it is important to bear in mind employees’ entitlements to pay in the event that they are required to self-isolate away from the workplace. As flagged in the Government guidance for employers on workplace testing, an individual who has been identified as a contact by an internal contact tracing system but is not defined as a contact by the NHS Test and Trace service does not qualify for SSP. If you decide to require the employee to remain away from the workplace, you should enable them to work from home where possible. If working from home is not possible, you may have to keep them on full pay, unless their contract of employment provides otherwise (since an employee who is not symptomatic and has not been told to self-isolate by the NHS Test and Trace service would be considered ready and willing to work – and therefore entitled to pay if prevented from working by their employer). If an individual whom you have identified as a contact under an internal contact tracing system is contacted by NHS Test and Trace as well, they will become eligible for SSP (if they meet the other eligibility criteria) from the day that NHS Test and Trace tells them to self-isolate – and, as noted at question 4, above, they risk being fined if they do not self-isolate in accordance with the instruction from NHS Test and Trace.
The Government guidance for employers on workplace testing also emphasises that if you decide to require asymptomatic employees to stay away from the workplace because you have identified them as contacts under an internal contact tracing system, you should ensure that they are given the correct public health advice. This includes advising them to request a test if they become symptomatic. Until they are contacted by NHS Test and Trace, they do not have to self-isolate. Instead, they should:
- avoid contact with people at increased risk of severe illness from Coronavirus, such as people with pre-existing medical conditions;
- take extra care in practising social distancing and good hygiene; and
- watch out for symptoms and self-isolate if they also show signs of Coronavirus.
Employers should not attempt to trace any contacts beyond the workplace, but should refer these cases to the local PHE health protection team.
An internal contact tracing system will involve asking employees who have tested positive for details of any colleagues with whom they have had recent close contact. Questions should be carefully designed to ensure that the employer does not gather more information than necessary and employers will need to be mindful of data protection considerations – see the FAQs on ‘Data protection during the pandemic’.
6. What should we do if we have an employee who has symptoms (new continuous cough, high temperature, or change to / loss of their sense of smell or taste), but is refusing to self-isolate and insists they are fit for work? (Last updated 09/11/2020)Any employee whose role is such that they can work effectively from home should do so provided they are well enough and should be paid their normal pay during this time. (Note that during the current lockdown period in England all employees who can effectively work from home should be doing so in any event.)
As noted at questions 2 and 4, above, from 28 September, it is a legal requirement for individuals who have tested positive for Covid-19, or who have been instructed to self-isolate under the NHS Test and Trace programme, to self-isolate and they can be fined if they do not follow the rules on self-isolation. In addition, employers commit an offence punishable by a fine if they knowingly allow an individual who is required to self-isolate to attend the workplace.
- live in England;
- have been asked to self-isolate by NHS Test and Trace, either because they have tested positive for Covid-19 or because they have recently been in close contact with someone who has tested positive;
- are employed or self-employed;
- cannot work from home and will lose income as a result of self-isolating; and
- are currently receiving at least one of the following benefits: Universal Credit, Working Tax Credits, income-related Employment and Support Allowance, income-based Jobseeker’s Allowance, Income Support, Pension Credit or Housing Benefit.
If an individual does not fulfil the above criteria for the Test and Trace Support Payment, they may be eligible for a £500 discretionary payment if they:
- live in England;
- have been asked to self-isolate by NHS Test and Trace, either because they have tested positive for Covid-19 or because they have recently been in close contact with someone who has tested positive;
- are employed or self-employed;
- cannot work from home and will lose income as a result of self-isolating;
- are not currently receiving any of the following benefits: Universal Credit, Working Tax Credits, income-related Employment and Support Allowance, income-based Jobseeker’s Allowance, Income Support, Pension Credit or Housing Benefit; and
- are on a low income and will face financial hardship as a result of not being able to work while self-isolating.
Individuals who are eligible for either a Test and Trace Support Payment or a discretionary payment will receive the £500 on top of any benefits and SSP that they currently receive.
Individuals wishing to apply for the Test and Trace Support Payment or a discretionary payment should contact their local authority.
7. Can our staff canteen still operate? (Last updated 09/11/2020)
Under the lockdown rules that apply in England from 5 November to 2 December, cafes, restaurants and other hospitality venues are required to close, although they can continue to provide a takeaway service.
The current lockdown guidance does not specifically identify what the position is for workplace canteens. During the previous lockdown, the applicable guidance recommended that employers encourage employees to bring in their own food where possible and suggested that canteens provide a takeaway service. However, it did permit workplace canteens to remain open where there were no practical alternatives and appropriate social distancing and other safety measures were put in place. We assume that the position will be the same during the current lockdown.
Indeed, the guidance for food businesses seems to recognise that workplace canteens may need to remain open. It suggests various measures to reduce risk, such as:
- making hand washing facilities or hand sanitiser available at the entrance to canteens and supervising its use;
- staggering break times to ensure no overcrowding, so that staff can adhere to social distancing rules;
- marking queue points clearly on the floor to ensure social distancing is possible;
- not permitting any sharing of food and drink by staff who do not share a household;
- as far as possible, providing individually wrapped food to avoid any contamination;
- increasing the frequency of cleaning, especially hand touch surfaces, such as table tops, drinks levers, keypads, grab-rails, elevator buttons, light switches, door handles, plates or cutlery, and any surface or item which is designed to be, or has a high likelihood of being touched;
- cleaning canteen spaces thoroughly after each group of staff use them;
- keeping doors and windows open wherever possible to allow greater ventilation and prevent touching of window handles (subject to appropriate fly screening);
- considering implementation of a system to reduce the use of cash for food or to facilitate the exclusive use of debit cards; and
- where possible, matching cohorts of workers to zoned canteen areas.
As noted at question 2, above, further recommendations on maintaining social distancing at break times are included in the guidance on working safely in factories, plants and warehouses.
In addition, note that if your canteen provides a sit-in service, you must collect customer data for the NHS Test and Trace programme. The guidance on the requirement to collect customer data makes clear that this requirement continues to apply if your canteen remains in operation during the lockdown. The rules require you to:
- ask at least one member of every party of customers or visitors (up to 6 people) to provide their name and contact details – either in advance or when visitors enter the canteen premises;
- keep a record of all staff working on their premises and shift times on a given day and their contact details;
- keep these records of customers, visitors and staff for 21 days and make them available when requested by NHS Test and Trace or local public health officials to help contain clusters or outbreaks; and
- display an official NHS QR code poster, so that customers and visitors can ‘check in’ using this option as an alternative to providing their contact details.
You should collect this information in a way that is manageable for your establishment and compliant with the GDPR. The ICO has published guidance to help organisations comply with their GDPR obligations in this regard.
8. What if an employee ignores Covid-19-related hygiene rules? (Last updated 21/09/2020)If an employer has instructed its employees to follow certain rules to contain the virus and ensure safety in the workplace and an employee fails to comply with those instructions, the employer will be entitled to take disciplinary action.
It is worth noting that employees have a duty under health and safety law to take reasonable care for their own health and safety and that of others who may be affected by their acts or omissions at work, as well as to cooperate with their employer on health and safety matters. It is strictly a criminal offence for employees to breach these duties. Almost any instruction for an employee to take certain measures which are aimed at helping the employer comply with its health and safety duties to employees and third parties will count as a reasonable management instruction for disciplinary purposes. In addition, as noted at questions 2 and 4, above, from 28 September, individuals who have tested positive for Covid-19, or who have been instructed to self-isolate under the NHS Test and Trace programme, can be fined if they do not follow the rules on self-isolation.
That said, if an employer is proposing to discipline an employee for refusal to comply with such an instruction, the employer should still follow a fair process and take account of the employee’s individual circumstances, ensuring that any such action is proportionate. In particular, if an employee has a disability that means it is more difficult for them to follow a particular rule, before deciding to impose a disciplinary sanction, the employer may need to consider whether there are any reasonable adjustments it should make to the rule to enable the disabled employee to comply. By way of example, an employee with a respiratory condition such as asthma may struggle to comply with a rule that employees wear face coverings in common areas of the workplace. The Government guidance applicable in England specifies that wearing a face covering is mandatory for passengers on public transport and in various indoor settings, unless an exception applies, e.g. if an individual is unable to do so because of a physical or mental illness, impairment, or disability, or if wearing one would cause the individual severe distress. However, although wearing a face covering is encouraged in other enclosed public spaces where individuals may encounter people they do not usually meet, it is not legally required. Disciplining an employee who has a medical condition that makes it difficult for them to comply with a rule that employees wear face coverings in common areas of the workplace may therefore be risky and we suggest that you take advice on your particular circumstances.