Covid-19 – the essential guide to undertaking ‘Return to Work’ Risk Assessments
As an employer you have a duty under the Health & Safety at Work Act 1974 (“HSAWA 1974”) to ensure that you provide a safe working environment for your staff and those attending your office. Any existing health and safety policy will need to be updated given the current global pandemic. In order to mitigate your liability (should someone contract Covid19 whilst at your offices), you will need to have undertaken a comprehensive risk assessment, in consultation with your staff, and implemented new measures to help maintain the current social distancing rules.
Q. Can an employer be liable if an employee contracts Covid19 at work?
Yes, potentially, but employees would have to prove that on the balance of probabilities it was exposure at work that led to them falling ill. To do this an employee would likely have to show that their employer was negligent in how it managed the risks.
Employers have a broad duty of care to those they employ. This duty can include obligations to take practical measures to support the physical and mental health and wellbeing of workers. Liability is strictly enforced and criminal prosecutions may be taken against business owners who do not assess potential risks and put in place measures to reduce these.
Despite some relaxing of the guidelines, the starting point, under the Health Protection (Coronavirus Restrictions) Regs (England) 2020, remains that staff should work from home if they can.
When the government’s ‘track and trace’ system is finally implemented, it should become very clear where a new outbreak of Covid19 has arisen. From both a staff safety perspective and in terms of your businesses’ reputation, you do not want your offices to be the centre of a new outbreak. Putting some simple protective measures in place could make all the difference.
The following sets out some useful guidance on points to consider before your staff return to the office. Even if this has already happened, you should undertake a new risk assessment if you haven’t already and keep your guidance and policy under review as the Government advice changes; currently almost weekly. The three main points for business owners to undertake are:
(1) Draft a ‘return to work’ policy;
(2) Undertake a revised risk assessment of your offices including a walk around inspection of the same to look for potential hazards;
(3) Consult with your staff to ascertain their thoughts and concerns about returning to the office or continuing to work from home.
Return to Work policy
Any return to work policy should consider existing working conditions and consider how these might breach current guidelines if no updates are made to working practices.
As an example, if your reception area is open, are reception staff being put at risk by clients being less than two meters away from them? If so, you should identify a way to reduce the risk. In this example, a screen could be implemented and clients asked to stand on marked areas on the floor, ensuring that they do not get close to your employees. Other considerations could include reducing the numbers of staff that are in the office at any one time. This could be achieved by partial working at home and in the office, extending core hour periods so that some staff start early, others finish late. Perhaps even offering staff the chance to work at weekends instead of during the week.
All of the risk areas identified in your inspection (explained in greater detail below), should be referred to in the policy, including details of what measures you have put in place to reduce risks. The more you can document ‘why’ you have taken certain decisions the better.
Undertaking a Risk Assessment
In order to effectively undertake a ‘return to work’ risk assessment, you should conduct a ‘walk around’ inspection of all office space and any high risk areas should be identified. It may assist to have a floor plan of your office space when doing this, so that problem areas can be marked on it.
Q. Who’s welfare should be considered?
Anyone coming onto your premises, therefore:
- All employees
- Work Experience
- Business visitors (e.g. other professionals, suppliers etc.)
- Contractors (e.g. workmen, consultants etc.)
- Suppliers (e.g. bin men, cleaners, delivery drivers, postman, couriers etc.)
Some questions that employers should ask themselves when undertaking any inspection (though this is by no means an exhaustive list) include the following:
- Can staff work in an environment that upholds current guidelines on social distancing?
- Do I need to implement additional safety measures in relation to any shared equipment?
- Is it possible to implement a ‘one way’ flow around the office, or alternatively to put measures in place such that employees do not have to pass each other in narrow corridors or on stairways?
- Should I be increasing our current cleaning regime e.g. by having a deep clean of the office undertaken every couple of days and asking cleaners to clean light switches, door handles etc.
- Should communal areas remain open? If so, how are you going to limit the number of people using these at any one time and how will equipment be cleaned to ensure it is safe for the next person to use?
- Do your staff share offices? If so, do you need to implement screens or change desk formations so that staff are not facing each other?
- What additional cleaning products and sanitisers should be purchased and where should these be located to ensure their use has maximum effect?
- Where are the key areas that you should be putting up government guidance posters and instructions for employees to wash hands, clean work stations and shared equipment etc.?
Staff Consultation is an essential requirement under the HSAWA 1974. In order to comply with the obligation to consult it would be sensible to circulate a questionnaire to all staff (including those who may be furloughed, on long term sick leave, maternity/paternity leave etc). Any questionnaire should place employee wellbeing at the forefront.
Examples of the types of questions that staff could be asked include the following:
- Do you have any relevant medical conditions meaning you would be classified under government guidance as vulnerable or extremely vulnerable, including pregnancy?
- Have you or someone in your household been advised to shield (meaning avoid unnecessary contact with others) by any medical practitioner or in compliance with any current government guidance?
- Do you have any current mental health concerns such that you would prefer to either work from home or return to the office?
- Do you have problems with access to childcare, or are you being required to home school your children?
- Do you use public transport or do you car share with someone not in your household when travelling to and from work? If yes, would you be happy continuing to do so if the business provided you with PPE (including reusable masks and disposable gloves)?
- Do you have any concerns about your particular role (including additional roles such as first aiders, fire wardens etc.) within the office, in terms of complying with the current government guidance on social distancing or otherwise? If yes, can you think of any measures we could put in place to reduce these risks?
All staff answers should be collated and consideration given to concerns raised. Questionnaires may also help you to decide who should be included in which stage of any phased return to the office. You may also wish to appoint a subcommittee of staff to consider the draft policy and to update it following any concerns raised.
The government’s guidance is likely to change, thus it is important that any written policies are regularly reviewed and updated in consultation with staff. Provided you assess the risks in your individual offices, record your findings and the measures you put in place to reduce risks, this will likely help to mitigate any liability should an outbreak of Covid-19 occur at your premises.
Finally it is important to note that risk assessments for businesses with 50 employees or more need to be published on the company’s website.
This is a complicated and ever changing area of law. Given health and safety responsibilities on employers are governed by ‘strict liability’ and that criminal sanctions can be imposed on business owners personally, it is important to ensure that you understand your obligations and put adequate protection in place to ensure the safety of those coming onto your premises.