The government has now issued new guidance designed to assist employers to work safely in light of COVID-19. This guidance was anticipated by the Prime Minister when he addressed, on Sunday evening, the gradual steps being taken to reopen the economy. It should be reviewed by all employers planning a full or partial reopening of workplaces, and by employers whose workplaces have been allowed to stay open during this crisis. Those who have continued to operate in physical spaces should consider whether the new guidance enables them to make any further improvements to their arrangements.
This new material is described as non-statutory guidance to be taken into account by employers when complying with health and safety obligations. Those obligations have not changed, but they do need to be reconsidered in light of coronavirus and the risk the virus presents. Social distancing and hygiene measures will be central to the new approach. Employers should reassess their activities and the layout of their premises and they should impose social distancing wherever they can. A COVID-19 risk assessment should be carried out to capture and record the control measures employers identify as necessary. A suitable and sufficient risk assessment remains a legal requirement.
Actions for employers
Ever since 1974, employers have been required to ensure, so far as is reasonably practicable, the safety at work of employees and others who may be affected by the way they run their business. Fresh analysis is needed in the present situation, and doing all that is reasonably practicable will now involve:
- increased frequency of handwashing in the workplace;
- facilitating home working wherever possible;
- making every reasonable effort to achieve social distancing at work; and
- where an activity is necessary but cannot be achieved with social distancing, adopting all possible mitigating actions to reduce the risk of transmission, including:
- more frequent hand washing;
- reducing the time the activity takes;
- using screens and barriers to separate workers;
- avoiding face to face working where possible; and
- creating small, fixed teams to limit interaction with the wider workforce.
Employers will need to step back and consider all areas of the workplace and each aspect of the working day. The objective is to maintain two metre social distancing wherever possible. The guidance outlines the steps that will usually be necessary in the workplace, from arrival to departure. Some of these controls we are becoming accustomed to seeing in the customer-facing premises that have stayed open during lockdown – floor markings, one-way systems, protective screening.
For companies to comply with their health and safety obligations they will need to reassess how employees enter and leave premises, move through the workplace, use their work stations, meet with others, take breaks and use rest rooms. Keeping workers apart and maintaining high levels of hygiene are the key themes. The guidance has had input from industry and unions and there is an expectation of consultation with representatives on the management of safety.
Failure to comply
We are told that, where regulators identify employers who are failing to comply with public health legislation and guidance, they will consider taking a range of actions, including provision of specific advice and the issuing of enforcement notices to secure improvements to arrangements. The guidance is silent on prosecution, but that ultimate enforcement intervention will also be available to penalise those who commit the specific offences created by public health legislation or who are judged to have done too little to protect against the risk of transmission of COVID-19 at work. The new guidance is not law, but it assists in interpreting what it means to do all that is reasonably practicable to ensure safety in the present situation. As such, adopting the steps it sets out is likely to help the employer to demonstrate that he has discharged his statutory duties so far as safety is concerned.
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