Introduction

Every employer knows they remain legally liable for injury or disease for employees as a result of work. Return to work strategies may find the health and safety executive playing catchup with governmental advice surrounding Covid-19.

Public health guidance, health and safety          regulations         and epidemiological advice   vary considerably from country to country, and the impact of each needs to be tailored to fit each specific industry and workforce dynamic. As such, no general guidance fits all contexts, meaning a proactive and logical approach is required.

What do you need

If it ain’t broke, why fix it? If remote working worked during the lockdown, can it be improved without having to accept the risks of repopulating the workspace and returning to the daily commute?  Equally, if working from home is not viable, all workplace risks need to be evaluated, accepted and managed effectively, empowering all stakeholders with the information they need.

Social distancing might be costly and take time to complete, one-way ingress and egress will need coordination, whether return to the workplace is required either in whole or in part.

The below points can be used as an evaluation baseline to aid that return, irrespective of the type of work environment, a rotational or phased approach with a systematic assessment of infection and transmission risk on each workplace to determine the required and appropriate control measures to be implemented.

Preparation of the environment

All health and safety risk assessments need to be revised (and ensure output from these are clearly communicated to staff) before any return to work strategy is confirmed. In particular, look into the workplace layout to understand the changes required to allow for physical distancing; a plan for systematic cleaning and disinfection of workspaces needs to be resourced with supplies and PPE. Employees can make valuable contributions here, and solutions identified by the workforce are easy to implement and enforce.

Adhere to any local laws and expect applicable regulations on the epidemiological situation to continue to change for some time yet, so factor in review points into workplace policies and practices.  Staff training needs to provide clear information about company policies, processes and practices related to the management of COVID-19.  This will empower employees with authoritative information on symptoms, transmission, how each individual can protect themselves, any specific restrictions in force (e.g. travel bans), and the rationale behind physical distancing.

Prepare the workforce

Maintain an open dialogue with workers. In particular, involve workplace health and safety representatives and committees in the planning, introduction and monitoring of preventive and protective measures. Early buy in when operational changes are required, e.g. shift patterns, business travel, etc may need to be negotiated with the unions or individually. Occupational health services will be able to advise on best practices relating to an employee’s personal circumstances and the vulnerabilities of immediate family/dependants to help tailor the changes.

Trade Unions should be viewed as a planning asset but remember, trade union membership along with existing medical conditions fall under a different category of personal data, and access to this needs to be thought through and authorised with privacy notices updated if necessary.

Change Management and Crisis Communications

Any recovery strategy is going to result in changes: these will need to be logically evaluated, budgeted for, implemented effectively and communicated throughout the workforce.  Change management and crisis communication plans should be used to template and document all phases of fact finding, planning and execution.

Once the plan is confirmed, it should be stress tested across a range of anticipated impact scenarios.

Coordination and Management

Everyone needs to understand all new processes and routines and thought needs to be given to any required transition period, without impacting business continuity.

Roles and responsibilities should be clearly apportioned before implementing changes, and communication strategies thought through as these will need to notify all employees, delegate new responsibilities to management, and provide clear guidelines regarding breaches for each new process.

Employees and managers need to understand the actions they should take when they experience any symptoms of COVID-19 or notice them in a colleague. Self-certification days may well cease to exist, and a prudent employer might invest in private medical consultation service to retain some control over NHS waiting times and an explosion of overly cautious sickness days.

Document all internal and external communication to record everyone who participated in information sessions and/or training, as doing so will negate the “no one told me” defence and ensure all employees receive the right information.

There lies a fine balance when planning an internal Covid testing regime. The liability risk landscape remains unclear but proving contagion may be a double edged sword in light of asymptomatic transmissions and the potentially devastating impact on vulnerable family members.

If temperature checking is considered, follow guidance from relevant health authorities concerning symptom-screening policies. In some countries, workers may be subjected to body temperature control before access to the workplace.  In such instances, in case of high temperature, access is refused.  If a temperature check is to be performed, it must be carried out for all workers in a uniform manner, by responsible trained personnel with suitable equipment.  It should be made clear that this screening is purely for access and to protect them from potential contagion, and is in no way a clinical diagnosis. Note that some countries explicitly do not recommend temperature screening and screening may lead to unintended consequences and data protection and privacy rules need to be respected.

Regular Review Points

Based on information currently available, vulnerable workers, older adults and people of any age who have serious underlying medical conditions might be at higher risk for severe illness from Covid-19. Workers should be advised if they belong to a group that can be more vulnerable to the virus and they should consult with their doctors.  The doctor can assess the case and make recommendations for particular preventive activities, including preventive “work incapacity”. Preventive measures can also include e.g. telework or reassigning workers to tasks entailing lower risk of contracting Covid. The doctor can also advise on increased preventive measures at home. Any details about a worker’s medical condition must be kept confidential.

Resumption of Business Travel

With every country responsible for their own borders, governments are obviously prioritising the safety of their voters and calls from airports and aviation bodies calling for a unified stance (with bilateral agreements between countries to minimise impact as restrictions ease) are in many cases going unanswered. The resultant information overload needs to be factored into every journey management plan because it is the Employer who will wear the liability if their employee catches Covid on a business trip, is prevented from travelling or returning having failed a temperature check.  The legislation is also yet to be defined regarding selecting or precluding travellers based on their health or medical conditions and the data protection implications of this. At least in the short term, employers should review journey management plans and revise travel risk assessments to factor in the risks both for the traveller and the destination in light of Covid, and it may be prudent to mandate flexible return flight tickets.

If an employer decides to discipline or dismiss an employee who is refusing to travel on an essential business trip, or in fact return to work because they are shielding, then this may well amount to disability discrimination. Legal advice should be taken if you have any difficulties to this regard. Disciplinary proceedings against an employee who is refusing to work should be a last resort, the employer –  employee relationship has become even more vital when homeworking forms parts of the work routine

If an employee makes it clear to their employer that they cannot travel or return to work because they are concerned about their health and safety, this could amount to whistleblowing. It is important for an employer to tread carefully, as an employer should not penalise an employee for whistleblowing or making a protected disclosure.

An employee may state that they are not attending work because it’s not safe to do so. It may amount to a protected disclosure if an employee states that they consider that someone’s health and safety is likely to be endangered. Knowledge and preparation is key. Whistleblowing policies should be reviewed and communicated throughout the management structure.

Currently, wherever one is travelling, there is likely to be some kind of inbound travel restriction or outright flight ban of some sort with many countries enforcing a complete border closure to foreigners.  Most countries at this time are imposing a 14-day quarantine. However, some countries may allow some leeway and the situation will continue to change win light of learning points as the situation matures further. NGS Aurora platform maintains up to date global travel restrictions as they happen, and our Aviation team has the expert knowledge of international regulations and operational procedures.

Summary

Planning and assessments, if done professionally, in good time, and using the information and analysis available, will significantly reduce the impact that further change will have on employee safety, business operations and company reputation.

Accommodating the health, risk appetite and personal circumstances of the workforce and communicating this effectively will help to ensure the it is the dog that wags the tail. Productivity management and internal communication plans should be clearly defined and communicated throughout the employee and management structure because whatever decision is made – whether to continue remote working, or if a partial or total return to work plan is planned – things will have changed.