Jon Cooper and managing associate Ashley Borthwick from law firm Womble Bond Dickinson provide an update on workplace safety following 100 days in lockdown.

 

At the start of lockdown, the Health and Safety Executive’s (HSE) general approach was to work with employers to ensure compliance and to issue enforcement notices to help secure improvements where appropriate.

However, as the phased return to work has progressed, the general tone has changed. HSE is now making it plain that prosecution will be a consideration in appropriate cases. It has reported over 1,000 spot checks after it resumed inspections at the end of May.

If working from home becomes the new normal, resulting in new working arrangements for larger numbers of workers than before lockdown, then we expect the HSE to begin to look more rigorously at what measures employers are taking to ensure the safety of these workers. Here’s what businesses need to know about the latest guidance:

Social distancing: 2m/1m+ with mitigation

The 2m rule has been relaxed in favour of a 1m plus approach. Employers are now advised to maintain a distance of 2m or 1m with risk mitigation where 2m is not viable. The primary objective remains to maintain a 2m distance where possible.

Vulnerable workers

Employers should take into specific consideration any workers who may be particularly vulnerable. This includes “clinically extremely vulnerable” workers who have been advised that they should be shielded by remaining at home. It also applies to workers living with someone in the shielded group.

The HSE states that shielded workers cannot return to workplaces before at least 31 July 2020 in Scotland; from 1 August 2020 in England; and from 16 August 2020 in Wales when shielding pauses.

Businesses need to put controls in place to reduce the risk to those individuals:

• Taking every possible step to enable working from home.
• If working from home is not possible, regularly reviewing your risk assessment and do everything ‘reasonably practicable’ to protect those workers from harm. For example, offering the option of the safest available on-site roles. Also, enabling them to maintain social distancing guidelines (2m or 1m with risk mitigation where 2m is not viable);
• If they cannot maintain social distancing, you should carefully assess whether this involves an acceptable level of risk.

PPE – face masks

The guidance remains that the use of personal protective equipment (PPE), such as face masks and visors, should be a last resort. The guidelines for non-medical workplaces state that the risk of Covid-19 “… needs to be managed through social distancing, hygiene and fixed teams or partnering, not through the use of PPE”.

Employers should stress that the control measures put in place to reduce the spread of Covid-19, such as those relating to hygiene and social distancing, must still be adhered to by those who choose to wear PPE.

There is a danger that the use of PPE provides a false sense of security. It may increase the risk of transmission if not used and disposed of appropriately. It is, however, recognised that some workers feel more comfortable wearing a face mask; even if it’s not a requirement of their employer. Employers are encouraged to support these workers. For example, by providing information regarding their safe use and disposal.

Temperature screening

Temperature screening is not a recommendation in the guidelines. However, several organisations are adopting this practice as an initial warning system; particularly those in the manufacturing and construction sectors. Issues to consider are:

• Information relating to temperature screening will need to be processed under data protection laws. The UK data protection regulator, the ICO, has produced guidance for employers relating to this issue (see here).
• A transparent and fair policy needs to be implemented concerning who is tested and when to prevent any allegations relating to victimisation and/or discrimination.
• Ensuring the conduct of a screening process (including communication of results) is in a way that respects the individual’s privacy.
• Providing training to those conducting the testing and put in place control measures to ensure their safety.
• Be clear on the process if a temperature test result is in dispute.

Working from home – the new norm?

Employers have the same health and safety responsibilities for home workers as for any other workers. HSE has developed its guidance on the issues you should consider specifically concerning home workers (see here). These include:

• Keeping in touch with home workers to ensure they receive support, have appropriate supervision and do not feel isolated.
• Assessing and managing the risks of using display screen equipment such as computers and laptops. A workstation assessment should take place in respect of people working from home on a long-term basis together with regular reviews.
• Managing work-related stress. For example, via communication, support and providing additional resource.

NHS Test & Trace

The NHS Test & Trace Service provides testing for anyone who has symptoms of Covid-19, traces and alerts “close recent contacts”, and, where necessary, notifies them of the need to self-isolate to help stop the spread of the virus.

Guidance has been published for employers (see here). Employers are encouraged to support workers who are required to self-isolate. For example, by not placing pressure on workers to return to work; finding alternative work from home if appropriate (this may include finding an alternative role); and ensuring that the worker is receiving sick pay if working at home is not possible.

Appointing a central point of contact in the business to assist the NHS tracers if a worker tests positive could help to limit the scope of business disruption; especially if strict social distancing measures are being observed.

More guidelines, but the general approach remains the same

The official guidelines are available here, and can be summarised as:

1. Carry out a Covid-19 risk assessment.
2. Develop cleaning, hand washing and hygiene procedures.
3. Help people to work from home.
4. Maintain 2m social distancing where possible.
5. Where people cannot be 2m apart, manage transmission risk.

 

Further support

Should you have any queries or require any assistance regarding workplace health and safety matters, Womble Bond Dickinson’s health and safety team can assist. Click here to visit the website.

Womble Bond Dickinson is hosting a Health and Safety webinar on 28 July. You can sign up for the webinar here.