Reopening the workplace after COVID-19

Employee health and data privacy must form part of business owners’ considerations when reopening their premises. Let’s find out more.

 At the time of writing, the remaining COVID-19 restrictions in England have been lifted, and many people are thinking about when and how they can return to work. Many employers are also keen to get employees back to the workplace. However, things are now different. Employers will need to focus on several areas in order to create a safe working environment for their employees and mitigate the risks of health and safety breaches and other claims.

 The Government has moved to step 4 of the roadmap, a new phase which started from 19 July 2021 and requires the management of the risks of COVID-19 with continued caution. To ensure they are up to speed with the latest changes, employers should talk to an Employment lawyer to ensure they are mindful of advice that continues to emerge, both nationally and regionally. Implementing a return to the workplace will require careful thought to safeguard employees’ health and wellbeing.

 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.

What if employees have had COVID-19 or get symptoms on their return?

 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, some of which are covered by the few remaining restrictions.

 The Government advice reiterates the need for caution and emphasises a gradual return to work is sensible. It expects many to continue to be working from home throughout the summer months. For those who do return to the workplace, employers need to be prepared to implement homeworking again at short notice as the infection rates in some areas are rising.

 A high degree of responsibility rests on employers to care for its workforce and clients during the pandemic. The Government’s guidance differs for different types of work and includes the statutory health and safety requirements which carry criminal and civil sanctions for non-compliance.

 Employees who have had Coronavirus or know someone who has will undoubtedly remain cautious and a careful individualised approach will be required. Employees not only want to feel safe going back, but they won’t want their innermost secrets to now be 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.

Vaccinations and testing

 All UK adults have now been offered their first vaccination. However, vaccinations are not mandatory and in isolation, vaccination status alone may not be enough to ensure a safe return to the workplace. This is especially the case if large numbers are to return to the same workplace. Employers should carefully consider its organisational policy and whether it requires some or all staff to be vaccinated as part of their job, balancing the data protection and potential discrimination risks. An announcement is expected relating to vaccination status for care sector workers in England.

 It remains an offence to allow a person who is self-isolating to attend work. Businesses are also encouraged not to allow people with COVID-19 to visit its premises. It may be difficult to ascertain whether initial symptoms are COVID-19 or a cold without testing. However, it appears that there is no obligation on an employee to be tested for COVID-19. Employers will need employees’ agreement to be tested if workplace testing is to be implemented. Employers seeking to enforce compulsory testing could face legal issues and claims.

Furlough scheme to end

 With just over two months left to run on the Government’s furlough scheme, many employers will be mindful that they will soon need to make decisions based on the scheme ending. There are a number of options available depending on business needs but consideration should be given not only to the options but to the individual employees to minimise the risks of claims, especially where differential treatment may be needed. Advice should be sought from an Employment lawyer to avoid the risk of the savings made by using the furlough scheme being utilised in defending tribunal proceedings.

Handling sensitive data from testing

 Information about an employee’s health is special category data under the Data Protection Act 2018 and the General Data Protection Regulation 2016/679. Special rules apply to handling this data. These rules can be complex to navigate but failure to comply can result in fines from the supervisory authority, the Information Commissioner’s Office (ICO).

 The ICO says that transparency is very important. Employers should be clear when testing employees or contractors for COVID-19 what decisions will be made with that information. There is other information which must be provided too. You should seek expert advice before you decide to test employees to ensure compliance with your legal obligations.

 If someone in a workplace tests positive to 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. This may not happen in practice; as employees may feel it would put too much of a stigma on them.

Talk to an Employment Law solicitor

 It’s clear that the Government guidance and taking an individualised approach may conflict. If you’re a business owner looking for advice on how to create the best environment for your staff while staying within the law, you should talk to an Employment Law professional.

Find out more

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

 We offer a free, 30-minute call with a Couchman Hanson Employment lawyer. It’s peace of mind during these uncertain times.

 To find out more, call 01428 722189 or visit couchmanhanson.co.uk.