Reopening the workplace after COVID-19

Employee health and data privacy must be at the centre of business owners’ considerations when reopening their premises. Let’s find out more.

At the time of writing, the UK’s Coronavirus lockdown is beginning to ease, and many people are thinking about when and how they can return to work. However, things will be different. Employers will need to focus on several areas in order to create a safe working environment for their employees.

The guidance from the Government is updated regularly. To ensure they are up to speed with the latest changes, employers should talk to an Employment lawyer who can keep them on the right side of any issues.

In this article, we’re going to look at issues around safeguarding the health of employees after reopening the workplace. How far can employers go when it comes to collecting and sharing their employees’ health data? Let’s find out more.

How private will health data be after COVID-19?

Employers want to create a safe space for all their employees when their workplace reopens. However, some of those employees may have had the Coronavirus, or have been locked down with someone who did. There may be employees who begin to suffer from symptoms after returning to work. This opens up a new set of issues.

There is currently little guidance about what information employers can collect around this, or what they can do with it. The Employment Lawyers Association (ELA) have set down some ideas based on current Law, but clarification from the Government would be useful.

Self-declaring symptoms

The ELA believes that an employer has the right to ask their staff members to let them know if they are suffering from COVID-19 symptoms, although they cannot insist on it. Employers would also need to be clear that the reason they are asking is to protect the rest of the workforce.

Testing and tracing

The World Health Organisation recommends temperature testing for employees as they enter the workplace. However, questions remain about how employers can use the data they collect.

Regarding specific COVID-19 tests, the ELA believes that employers cannot compel a worker to take a test, even if it is available through the Government. The only circumstances where it may be reasonable is if it specifically relates to the role of that individual worker, such as someone working in healthcare with vulnerable people.

There has also been a lot of talk about tracing apps that monitor the spread of the virus and notify people if they have been in contact with carriers. This raises a lot of questions around data sharing, which have not been clarified by the Government yet. Employers and staff need to know if they will be mandatory. They also need to know what happens to the data. Can employers request access to the data on the grounds of protecting the rest of their team?

Sharing sensitive information

If someone in a workplace shows symptoms of the virus and has to go into self-isolation, it is unlikely that employers can tell the rest of their workforce about who has it and what happened. For information like this to be shared, employees must give consent and it is unlikely that this would happen in practice; it would put too much of a stigma on the infected person.  This clearly has difficult practical implications for those running the business.

What are the risks?

Employers and employees both have concerns over going back to work. Employers want to create a safe environment so they can go back to making revenue and growing their businesses. Many employers may believe testing, tracking and information sharing are necessary tools to help them create a safe workplace, alongside other measures such as social distancing.

On the other hand, employees want to feel safe going back, without feeling that their innermost secrets are now up for grabs to their employers. Some may fear that any health information employers can gain now may be used against them in the future.

Can an employee object to returning to work?

An employee has the rights not to suffer a detriment from the employer where the employee reasonably believes themselves to be in serious or imminent danger, which they could not reasonably have been expected to avert, and either does not attend work, or leaves the workplace, on the basis of that belief under section 44(1)(d) of the Employment Rights Act 1996.  This is an area of statutory law which has not been commonly applied or relied upon by employees but it is likely to receive much consideration in the coming weeks.

Ordinarily, where an employee refuses to attend at work they are not entitled to be paid unless it is qualifying as some form of sickness, holiday or parental leave.  We can see that some employees might argue that the withholding of pay represents a detriment under this part of the Act.

Employers will need to consider the specific circumstances of each employee, including whether they are in a more at risk type category from Covid-19.  The reasonableness of an employee’s beliefs is a subjective test which will carry much less certainty, and therefore risk, for all.

Talk to an Employment Law solicitor

It’s clear that the Government still has much work to do to clarify their regulations. In the meantime, if you’re a business owner looking for advice on how to create the best environment for your staff whilst staying within the law, you should talk to an Employment Law professional.

Find out more

If you have any questions about Employment Law during the COVID-19 crisis, it’s time to talk to Couchman Hanson.

We are currently offering you a free, 30-minute call with a Couchman Hanson employment lawyer, where you can get all your questions answered. It’s peace of mind during these uncertain times.

To find out more, call 01428 722189 or email enquiries@couchmanhanson.co.uk