As the government eases lockdown measures, it is anticipated, if not hoped, that many employees will return to work in the near future. To ensure employers are continuing to abide by their ongoing health and safety duty to employees, employers should consider what precautionary measures they could introduce to minimise staff exposure to coronavirus.
Social distancing measures may be with us for some time and prior to staff returning to work, employers should conduct a full and relevant risk assessment, taking into account applicable government guidance.
Central government’s recovery strategy provides that people should aim to wear face masks/coverings in enclosed spaces in circumstances where social distancing may not possible; e.g. public transport and some shops. England’s ‘Working Safely Guidance’ states that wearing a face covering may be marginally beneficial as a precautionary measure in some workplaces, but this guidance distinguishes between face coverings and face masks. Northern Ireland’s guidance, summarised on the nidirect website, appears to follow that of England, confirming that the use of face coverings will not be mandatory. As such, an employer wishing to introduce the wearing of face masks when at work should consider the guidance on face coverings for the particular type of workplace involved. As masks appear to have some degree of protective benefit, employees may agree to wear them without issue if offered. And, if deemed mandatory by an employer, it may be able to argue that any refusal to wear a mask/covering is a refusal to abide by a reasonable management instruction, possibly resulting in disciplinary action. However, specific objections should be considered on a case by case basis.
Employers may wish to consider restricting the free movement of employees during their breaks/lunch time. However, whether this would be a reasonable work instruction is fact-dependent. It will be relevant to consider what provision the employers make or could make for employees during lunch time (e.g. access to food if employees normally purchase lunch during their lunch hour, rather than bringing food from home), whether the employees’ commute and working hours mean it is important for them to leave the office for other purposes (i.e. errands/shopping – particularly with the current government restrictions), the importance of employees taking an actual break from work, which may mean leaving the office/workplace, and the fact that lunchtime may be an employee’s only real opportunity for some exercise.
Employers may wish to consider introducing ‘temperature checks’ or test for Covid19 prior to permitting employees returning to work but would need to consider and weigh up the data protection implications of processing the results of such tests and the reasonableness of imposing sanctions should employees refuse to consent, against its health and safety obligations.
Regardless of the above preventative steps, until eradication of the virus by whatever means, contraction remains a risk and what is of no doubt, is the necessity for everyone to continue to practise social distancing as far as possible, wash hands thoroughly for at least 20 seconds each time throughout the day, and abide by the ethos of ‘catch it, kill it, bin it’ when they sneeze or cough. At the very least, employers should display visible signs in the workplace reinforcing this message and provide adequate items to ensure abidance with the measures, i.e. tissues, soap/hand sanitiser gel, cleaning products for desks and communal areas, floor markings to adequately identify relevant social distancing, are just some practical steps. Continued home working, for those who can, should also be considered, if reasonably feasible.
Employers should seek legal advice prior to the introduction of any suggested measures. Toni Fitzgerald-Gunn is an Associate Partner in the Employment Department of Worthingtons Solicitors and can be contacted via email at [email protected] or via telephone on 028 9027 9084.
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