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May 7, 2020

The COVID-19 pandemic has proved highly disruptive to normal work practices and procedures, creating changes that could be evidenced for many years to come.

In some ways, the crisis has also illuminated existing health and safety obligations for employers.

In some cases, it could possibly have exposed hygiene standards and provisions that were overdue for review and improvement!

As the repercussions are so substantial, long-lasting and complex, this is a guide to employers' obligations in relation to this coronavirus crisis, and beyond.

National and international frameworks

As organisations of all sizes have a duty of care for their employees, it is vital to familiarise yourself with the most up to date government guidance on responding to COVID-19, as well as any information from other credible bodies, including your own trade association, for example.

At the time of writing, the government guidance on social distancing – which has a considerable impact on employers – was detailed here.

This page will now direct you to updated information, as the lockdown eases through various stages.

The government advice for employers during the coronavirus pandemic can be found on this employers' advice page.

This too will be amended as the restrictions on working practices and patterns change.

The World Health Organisation (WHO) has also issued information to help employers prepare workplaces for proper infection control.

Acas has curated information under "Coronavirus (COVID-19): advice for employers and employees".

With all this advice and guidance available, ignorance of what is required to protect your employees clearly has no credibility.

Also, should an employee express concern about your response to COVID-19 as an employer, they are likely to be covered by the Employment Rights Act of 1996.

This legislation guards against being treated adversely - or being dismissed – when someone addresses concerns about health and safety in various ways.

There is more on employment law in relation to the coronavirus response later in this guide.

Special considerations, including pregnant staff

Your duty of care as an employer could alter as a result of updated government guidelines regarding business operations to minimise transmission of COVID-19.

For instance, staggering business hours to assist staff to socially distance during commutes is currently being reviewed, and may now be a reality.

However, some of your special obligations as an employee are a development of existing safeguarding and health protection issues.

This includes, for example, sustainable measures to protect pregnant staff or those who are particularly vulnerable to the virus due to pre-existing health conditions.

To meet your health and safety obligations as an employer – in response to the coronavirus pandemic – you need to carry out a thorough risk assessment that evaluates the issues faced by vulnerable employees.

If a substantial risk is identified, then under the Management of Health and Safety at Work Regulations (1999), you need to find ways to alter the employee's working conditions or hours of work to address that risk.

Should that not be practical or possible, under the MHSW regulations and Employment Rights Act (1996), you are obliged to offer them an alternative role or tasks, if it is not deemed "substantially less favourable".

An illustration of best practice would be to discuss with an at-risk employee what alternative work they could do from home when their existing role requires them to be in the workplace to find a way to avoid jeopardising their health (or the health of an unborn child).

The steps to meeting COVID-19 health and safety obligations

As referenced above, it starts with making sure you are fully aware of all the latest business intelligence on the pandemic and what is required of you, to protect your employees, customers and suppliers.

Next, you need to consider your business operations and procedures in the light of current advice and requirements.

What have you done to date, to limit opportunities for the virus to spread, and what more could you do in the context of your working day?

There has never been a more important time to evaluate and support basic health and safety requirements in workplaces. You will need to carry out these measures more frequently and thoroughly too, including:

  • Cleaning all hard surfaces, including door handles, lift buttons, phones, desks and other items that can be touched by multiple people.
  • Providing employees with easily accessible handwashing facilities, and a supply of hand sanitising gel.
  • Tangibly encouraging employees to wash their hands frequently.

Special hygiene and infection control measures introduced as a result of COVID-19 include:

  • Encouraging staff to catch sneezes and coughs in tissues, bin them, then wash their hands.
  • The wearing of cloth or specialist paper face masks may be introduced into UK workplaces too.
  • Facilitating remote working wherever possible so that staff can stay at home.
  • Taking steps to protect staff by empowering social distancing when they must be in the workplace. Various scenarios are outlined in Government advice and may ultimately include perspex screens around work stations and reception desks.

Employees refusal to work due to infection fears

If you have taken all the steps to meet your COVID-19 Health and Safety obligations as an employer, but an employee refuses to come to work due to fear of infection, what actions are available to you?

This is a highly sensitive area of employment law and requires consideration in your approach. Can this individual be assisted to work from home, to mitigate their fears about COVID-19 infection?

If not, the context of current government guidelines on coronavirus containment needs to be reviewed, in determining whether denying them alternative work from home options or dismissing them could be viewed as discriminatory.

This is especially true if they have a health condition classified as creating additional risk from COVID-19 infection or they have an underlying condition which is defined as a disability under the Equality Act 2010.

There are also two specific employment rights detailed in the Employment rights Act 1996 (ERA) that are directly relevant.

This relates to employees who allege that they are "in circumstances of danger" that they "reasonably consider to be serious and imminent", to leave their place of work, refuse to return to it or take "reasonable steps" to protect themselves or others from the danger.

Where employees raise such complaints then dismissing an employee for such conduct is automatically unfair (s.100 of ERA 1996) and it is also unlawful to subject an employee to any detriment on these grounds (s.44).

These rights apply to all employees regardless of the job they do.

When you can't find alternative remote work, or your employee 'reasonably' refuses to fulfil that role, under the MHSW regulations you are obliged to suspend them on full pay.

When an employee shows COVID-19 symptoms

If you refer to the information in the first section of this guide to employers' obligations for the Coronavirus pandemic, the list of symptoms associated with potential infection is clarified, including high temperature and a persistent cough.

Should an employee display signs or symptoms of COVID-19, you must send them home immediately, and advise them to follow self-isolation protocols.

If their condition is cause for concern, they should be encouraged to call the NHS helpline 111. If it is serious and their life appears to be at risk, then the employer must take responsibility and call 999 immediately.

It is important to note that even in these challenging and complex times, an employer cannot force an employee to undergo a medical examination without consent, and that includes taking their temperature!

Even with consent, to remain lawful, such practices need to be carried out according to prescribed systems, for example, enlisting the involvement of an occupational health professional.

To remain legal and to create synergy with government guidelines on coronavirus testing, you are advised to direct your employees to regulated testing stations near to your workplace or their home.

Changes to requirements

The employer response to COVID-19 will need to be amended as the government guidelines for infection control update and the restrictions ease.

This may include, for example, recommendations to wear face masks or keep any indoor seated areas closed.

You are strongly advised to stay up to date on these and use common sense on what you can 'reasonably' expect of employees during these unique and challenging times.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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