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: 15/06/2021
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.
1. What businesses are required to close or remain closed? (Last updated 15/06/2021)
On 4 January 2021, England entered a third national lockdown, which required many businesses to close. On 22 February 2021, the Government announced a ‘roadmap’ for gradually lifting lockdown measures, with different types of business being permitted to reopen at different stages, providing certain criteria were met. On 14 June 2021, the Government announced that the fourth and final stage of the roadmap for reopening would be delayed by four weeks due to concerns about the spread of the ‘Delta variant’ of Covid-19. Accordingly, some businesses such as nightclubs must still remain closed. Businesses in the manufacturing sector are among those that have been allowed to remain open throughout. 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.
2. What are the safety requirements for businesses that remain open? (Last updated 15/06/2021)
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 that is open to anyone other than your staff – see further at question 8, 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 at an early stage, but are encouraged to keep checking the guidance as it evolves to identify any further improvements they should make. Under this guidance, employers must make every reasonable effort to ensure their employees can work safely.
Although lockdown restrictions have been easing in accordance with the Government’s roadmap, the instruction to work from home where possible remains in place – and will continue to do so until the fourth and final stage of the roadmap is implemented. This was due to take place on 21 June 2021, but has been postponed to 19 July due to concerns about the Delta variant of Covid-19. However, the guidance acknowledges that working from home may not always be possible in all sectors – including manufacturing – and specifies that employees who cannot work from home should attend the workplace (although there are additional considerations for clinically extremely vulnerable employees and employees who are required to self-isolate will not be able to attend the workplace during their self-isolation period – see further below, under the heading ‘Who should come to work’). Also see the FAQs on ‘Managing employees during the pandemic’, for points you should consider in relation to temporary home-working arrangements, and on ‘Employees unable or unwilling to attend work’ for consideration of what to do where employees – including those who are considered ‘clinically extremely vulnerable’ – cannot come to work due to concerns about the virus and further details of the rules in relation to self-isolation.
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 that guidance as it was updated on 17 May 2021. We will endeavour to keep it up to date, but employers need to regularly check the guidance on the Government website, since it changes frequently 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 eight 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.
- Provide adequate ventilation – the guidance signposts to specific advice on this topic from the Health and Safety Executive (HSE).
- 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. (The guidance flags that it is an offence for an employer to ask an employee to break self-isolation in order to work.)
- Consider the mental health and wellbeing aspects of Covid-19.
These steps are explained in greater detail in the rest of the guidance and we cover them further below.
- 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.
- Communicate and provide training where appropriate to ensure that all staff and customers are kept up to date with your safety measures.
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 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. It also flags that inspectors are carrying out compliance checks on a nationwide basis and that employers are expected to respond promptly to any advice or notices issued by the enforcing authorities.
Who should come to work
Although lockdown restrictions have been easing in accordance with the Government’s roadmap, the instruction to work from home where possible remains in place – and will continue to do so until the fourth and final stage of the roadmap is implemented. This was due to take place on 21 June 2021, but has been postponed to 19 July due to concerns about the Delta variant of Covid-19. However, the guidance acknowledges that working from home may not always be possible in all sectors – including manufacturing – and specifies that employees who cannot work from home should attend the workplace.
When considering who should come to work, employers are encouraged to ensure that workplaces are safe while also enabling working from home. The guidance recommends that employers consult with their employees to determine who needs to come into the workplace and who should not. Employers should give extra consideration to those people at higher risk.
The guidance flags that although anyone who can work from home should do so, employers ought to consider whether home working is appropriate for employees with mental or physical health difficulties or whose home working environment is particularly challenging.
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).
- You should consider the maximum number of people who can be safely accommodated at the workplace.
- When the third lockdown was introduced in England, the clinically extremely vulnerable were advised to follow shielding guidance and not attend the workplace. Since 1 April, the shielding guidance has been relaxed and the clinically extremely vulnerable have been advised that they can attend the workplace if they cannot work from home. The working safely guidance now advises that employers should consider whether clinically extremely vulnerable individuals can take an alternative role, or change their working patterns temporarily to avoid travelling during busy periods. If an employee who has been away from the workplace because they were shielding is now due to return to work, we recommend that you conduct a risk assessment to identify whether any particular steps are needed from a health and safety perspective, in addition to the Covid-secure measures you have already implemented in the workplace, to take into account the employee’s individual circumstances. However, it is also important to note that some clinically extremely vulnerable employees might not feel able to return to the workplace. The guidance for the clinically extremely vulnerable appears to recognise this, as it provides that they may remain eligible for furlough under the Coronavirus Job Retention Scheme (the Extended CJRS) throughout the period that it remains in place, provided their employer agrees – see our FAQs on the Extended CJRS for further details. (By way of reminder, those who are considered clinically extremely vulnerable include the approximately 2.3 million individuals who were advised at the start of the pandemic that they are most at risk of severe and life-threatening illness if they contract Covid-19, plus a further 1.7 or so million individuals who were added to the list in February 2021 following an expansion of the definition of ‘clinically extremely vulnerable’, all of whom have been advised by the NHS to ‘shield’ during specified periods of the pandemic. The expansion of the definition of ‘clinically extremely vulnerable’ is based on new modelling that takes into account not just existing health conditions, but also criteria such as ethnicity, deprivation and weight, to determine a person’s risk of becoming seriously ill if they were to contract Covid-19).
- Anyone who has tested positive for or has symptoms of Covid-19, lives with/is in a support bubble with someone who has tested positive for or has symptoms of Covid-19, or has been instructed to do so under the NHS Test and Trace programme, must self-isolate at home in accordance with Government guidance. (In addition, although not specifically flagged in the working safely guidance, it is important to note that individuals may be advised to self-isolate via the NHS Covid-19 app if they might have come into contact with someone who has tested positive for Covid-19, and anyone who returns to the UK from abroad is required to self-isolate for a 10 day quarantine period unless an exemption applies.) Individuals who have to self-isolate because they have tested positive, have been instructed to do so by NHS Test and Trace, or have to quarantine on return from abroad can be fined for non-compliance - see our FAQs on 'Employees unable or unwilling to attend work' and 'Managing employees during the pandemic'. In addition, regulations require these individuals to inform their employer of the self-isolation requirement as soon as reasonably practicable if they are due to work during the self-isolation period. The Government guidance for employees and employers on the implications and options if someone is unable to attend work due to coronavirus highlights that it is an offence punishable by a fine for an employer who is aware of an individual’s legal 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.
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.
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 and/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. The guidance also notes that social distancing may be more challenging for employees with certain disabilities, such as those in wheelchairs or with visual impairments and recommends that employers discuss with these employees what reasonable adjustments can be made to enable them to work safely.
Where it is not possible to follow social distancing guidelines in full in relation to a particular activity, you should consider whether that activity can be redesigned to allow for social distancing. If that is not possible, you should consider whether the 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);
- avoiding people working face-to-face, e.g. by instead working side-by-side or facing away from each other;
- installing screens to create a physical barrier between employees; and
- if employees have to work closely together, e.g. in lifting or maintenance activities that require two people, using 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;
- airing rooms between meetings, by opening all doors and windows as fully as possible; 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, where that is not possible, to maintain social distancing while off-site; 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 also via signage on arrival. It also recommends establishing host responsibilities relating to Covid-19, co-operating with other occupiers if you share facilities 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, if they draw in a supply of fresh air, employers are advised to refer to the detailed HSE guidance in this area.
The guidance on working safely emphasises that is also important to maintain good ventilation in the work environment to reduce the spread of airborne particles in the workplace, for example by ensuring that extractor fans work effectively and opening windows and vents where possible. The guidance flags that good ventilation can be different for different areas, depending on how many people are using the area, how the space is being used and its particular layout. It recommends that employers refer to specific guidance on air conditioning and ventilation from the HSE.
In order to help all employees maintain good hygiene, the guidance recommends:
- using signage and posters to remind employees to wash their hands regularly and thoroughly, avoid touching their face, etc;
- providing hand sanitiser in multiple accessible locations around the workplace, taking into account the needs of people with disabilities;
- providing hand drying facilities – either paper towels or hand dryers – at hand washing facilities,
- providing more waste facilities and more 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 and taking special care with the cleaning of portable toilets;
- 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 usually 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 generally needs to be managed through social distancing, hygiene and fixed teams or partnering, not through the use of PPE. The guidance emphasises that workplaces should not encourage the precautionary use of extra PPE to protect against Covid-19 outside of clinical settings or when responding to a suspected or confirmed case of Covid-19.
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 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 and flags that the Government would therefore not expect to see employers relying on face coverings as risk management for the purpose of their health and safety assessments.
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;
- continue to wash their hands regularly;
- 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 flags the importance of taking into account the circumstances of employees with protected characteristics, such as disability, maternity and religion, and how they may be impacted by shift patterns and measures to reduce people flow.
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.
Supporting NHS Test and Trace
The guidance 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. (Note – see also question 8, below, regarding the requirement to collect customer details if your workplace canteen is open to anyone other than your staff.)
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 (PHE) health protection teams.
The guidance recommends that employers who have had an outbreak and need further guidance should contact their local PHE health protection team.
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 or on furlough, 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.
Inbound and outbound goods
Tests and vaccinations
The guidance includes a short section on Covid-19 testing and vaccinations, which emphasises that employers must continue to follow the ‘working safely’ measures, even if employees have had the vaccine (one or two doses), or received a recent negative test result.
With regard to workplace testing, the guidance specifies that employers must ensure that testing is carried out safely and in an appropriate setting, with control measures in place to manage the risk of Covid-19 transmission during the testing process, e.g. social distancing, frequent cleaning and adequate ventilation. The guidance also notes that all businesses registered in England whose employees cannot work from home can register to participate in the Government’s rapid workplace testing scheme, which provides lateral flow (LFD) testing for asymptomatic employees who cannot work from home – see question 5, below, for further details.
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 15/06/2021)As noted above, businesses that are not required to close (see question 1, above) and are able to continue to operate safely can remain open. Although the instruction to work from home where possible remains in place, employers can require employees (other than the clinically extremely vulnerable) 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 certain indoor settings, including 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 08/04/2021)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.
The guidance for employers on the NHS test and trace programme advises employers to contact the Self-Isolation Service Hub as soon as they are made aware that one of their employees has tested positive, so as to assist in ensuring that people identified as close contacts in the workplace can be registered with NHS Test and Trace and receive the appropriate public health advice.
5. Can we require employees to be tested for Covid-19 as part of our workplace safety measures? (Last updated 15/06/2021)
Anyone with symptoms of Covid-19 can apply to get tested on the NHS. Government guidance provides further details on access to testing.
In addition, everyone in England is eligible to access free, rapid coronavirus tests twice a week via a home ordering service, community testing which is offered by all local authorities, or collecting tests from a local PCR test site during specific test collection time windows or from a pharmacy participating in the ‘Pharmacy Collect’ service.
The Government is also encouraging employers to operate workplace testing as a way to identify asymptomatic cases and reduce the spread of the virus. All employers who registered to take part in the Government’s rapid workplace testing scheme receive lateral flow (LFD) tests for asymptomatic employees who cannot work from home, funded by the Government until the end of June. Government guidance indicates that employers who registered for this scheme can use the supplied tests to run their own on-site testing programme, or partner with accredited private providers who can run the testing programme on the employer’s behalf. Initially, the tests supplied by the Government under the scheme had to be administered at the workplace and could not be provided to employees to take home to conduct there. However, since 6 April, employers with 10 or more employees that cannot provide testing in the workplace (e.g. due to a lack of space to set up a testing facility) have been able to access home test kits to distribute to their employees. Like the workplace test kits, these are being funded by the Government until the end of June. Other small employers that cannot offer workplace testing are encouraged to access community testing services that are run by local authorities. Further information on how LFD testing works is available here.
The Government guidance includes useful information about the practicalities, such as on procuring and transporting test kits. It makes clear that the Government’s recommendation is for employees who will be tested at work to be given access to at least two LFD tests each week and explains the process for workplace testing, which involves individual employees registering their details in an online system so that their test results can be sent directly to them via text message or email and also shared with NHS Test and Trace, their local GP and Public Health England. Employers will not receive employees’ test results automatically and cannot insist that employees share their results directly. However, employees are obliged to inform their employer if they test positive.
As to how test results are used, the guidance indicates that employers can use these to understand who in their workforce currently has Covid-19 and needs to self-isolate following a positive test. 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 test result.
With regard to whether testing can be made mandatory, from an employment law perspective, an employer would usually only be able to require an employee to undergo any form of medical test if there is an express provision within the employee's contract (or a contractual sickness absence or other policy) providing for 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, and as highlighted in the Government guidance, 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.
The Government guidance also includes various checklists for employers on workplace testing. For example, the checklist for employers that are considering introducing a workplace testing programme advises employers to first be clear on:
- who the testing will cover – for example, will it be limited to directly employed staff, or will it also extend to other individuals working on the employer’s premises, such as contractors;
- the fact that the focus of workplace testing is on identifying cases among asymptomatic employees;
- the frequency with which tests will be carried out (as noted above, the recommendation is that employees should have access to a minimum of 2 LFD tests each week);
- what facilities are needed to carry out the tests;
- what type of test will be used;
- what the arrangements will be for any individual who does not wish to be tested;
- how the employer will use test results, including its policies on matters such as processing health data, managing absence, self-isolation, diversity and non-discrimination;
- how it will ensure compliance with its legal obligations to employees including under health and safety, equalities, data protection and employment law;
- how it will comply with the legal duty to report test results to Public Health England; and
- the affordability of implementing a testing programme.
The guidance also includes a checklist for staff communications, which flags the importance for employers establishing an internal testing programme of communicating to their employees clear information on:
- why they are setting up a testing programme, as well as or instead of accessing the existing national programme;
- whether the programme is voluntary or mandatory and what the consequences are for employees who decline to take part in the testing programme
- 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, including the requirement to self-isolate for 10 days if they test positive and to notify the employer if they test positive and are due to work during the period they would have to self-isolate.
The guidance also recommends that employers consult with relevant staff forums or unions ahead of implementing any testing policy.
6. Can we establish our own internal contact tracing system? What are the pay implications? (Last updated 01/03/2021)
Employers that implement a workplace Covid-19 testing programme (see question 5, above) may also want to introduce their own internal contact tracing system. While a previous version of the Government guidance for employers on workplace testing acknowledged this as a possibility, there is no reference to employers operating their own internal contact tracing systems in the guidance that is currently available online. It is also worth flagging that the previous guidance did caution that employer-led internal tracing systems could never be a substitute for NHS Test and Trace and that if you decided to require asymptomatic employees to stay away from the workplace because you had identified them as contacts under an internal contact tracing system where they had not been contacted by NHS Test and Trace, you should ensure that they are given the correct public health advice. This would include advising them to request a test if they become symptomatic.
An internal contact tracing system would 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 would need to be mindful of data protection considerations – see the FAQs on ‘Data protection during the pandemic’.
If an employer does decide to implement a workplace contact tracing system, it is important to bear in mind employees’ entitlements to pay where they are required to self-isolate away from the workplace in circumstances where they have not been contacted by NHS Test and Trace. You should enable such employees 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 - from the day that NHS Test and Trace contacts them - become legally obliged to self-isolate at home and, assuming they are unable to work from home, be eligible for SSP (if they meet the other eligibility criteria). They may also potentially be entitled to company sick pay if you operate such a scheme. For more details, see questions 6 and 9 of our FAQs on ‘Employees unable or unwilling to attend work’.
7. 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 presents at the workplace? (Last updated 08/04/2021)
Any employee who has Covid-19 symptoms 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 under the lockdown rules all employees who can work from home are advised to do so in any event and this instruction to work from home will remain in place even as lockdown restrictions are gradually eased over the coming months under the Government’s roadmap.)
In view of the employer’s duty to protect the health and safety of all staff, if an employee who is unable to work from home presented at work displaying symptoms that could potentially indicate they had Covid-19, the employer should send the employee home to self-isolate and encourage them to get tested. Indeed, employers will wish to avoid having symptomatic employees in the workplace and, as noted at question 2, above, the “Priority actions to take” section of the working safely guidance specifies that employers should turn away anyone with Covid-19 symptoms.
Employees with severe symptoms of Covid-19 are unlikely to be fit for work in any case. However, some employees with only mild symptoms may feel well enough to work. If it is not feasible for an employee with such mild symptoms to work from home, in view of the regulations providing for individuals who self-isolate with symptoms of Covid-19 to be deemed incapable of work, the employer should treat the employee as being on sick leave. Accordingly, the employer would pay such employees SSP (or company sick pay, if applicable). (See the FAQs on ‘Employees unable or unwilling to attend work’ for more information on pay for employees who are self-isolating.)
8. Can our staff canteen still operate? (Last updated 15/06/2021)
Hospitality settings are permitted to operate under current rules, albeit with social distancing and other safety measures in place.
The guidance for food businesses suggests various measures to reduce risk, which are also reflected in the relevant section of the guidance on working safely in factories, plants and warehouses. These measures include:
- 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;
- minimising self-serving options for food and drink and, 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;
- washing plates, cutlery and glasses by hand in hot soapy water, or with detergent in a dishwasher rated for disinfection;
- 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 and is open to anyone other than your own staff, you must collect customer data for the NHS Test and Trace programme. There is specific guidance on the requirement to collect customer data. The rules require you to:
- ask every customer or visitor to provide their name and contact details;
- 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.
9. 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 hygiene 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.
That said, if an employer is proposing to discipline an employee for refusal to comply with hygiene 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.