When rumours first broke out about a virus sweeping through China who would have guessed six months later the pandemic would still be ongoing, indeed nowhere near peaking. The working environment has changed dramatically, large numbers of people continue to work from home and many are concerned about going back into work. This prompted the UK government to issue an array of guidelines on “returning to the workplace” which were expected to be short-term solutions. However, these guidelines are set to be the basis for the working environment in the short to medium-term until a vaccine is discovered.
This prompted the question, what do employers need to do to protect their employees from COVID-19 and also ensure they are not on the wrong end of significant personal injury claims going forward?
Employers and their obligations regarding COVID-19
Before we look at the future working environment in detail, it is worth noting that an employer cannot be sued simply because an employee caught the COVID-19 virus. On the flipside of the coin, an employee can seek personal injury compensation if they catch COVID-19 as a consequence of their employer’s negligence. This basically means that if an employer takes all appropriate precautions then even if there is an outbreak of COVID-19 this does not automatically mean they have been negligent.
That is the first point to get across; employers are not responsible for COVID-19. They are however responsible for taking remedial action to reduce the risks of contracting COVID-19 in the workplace or while carrying out work duties elsewhere.
Purpose of the government guidelines
When it comes to COVID-19 there have been rumours, counter rumours and blatant untruths circulating for many months. When looking at responsibility and negligence, it is the government’s role to lead businesses with factual data and eliminate where possible all of the misleading rumours and counter rumours. Interestingly, the new government guidelines as they currently stand do not replace any of the health and safety in the workplace regulations which have been in place for decades. However, as we will come onto later, failure to abide by these guidelines can have potentially serious consequences.
To clarify, the legal health and safety obligations on all employers relate to:-
- Employees during the course of their everyday work
- Those coming into the workplace or having contact with employees in the course of business
While we often focus on employees during the COVID-19 crisis, employers also need to appreciate their legal obligation to protect their customers, suppliers and visitors to their premises.
COVID-19 risk assessments
In reality, risk assessments have been an integral part of the employer handbook for decades now. Indeed, failure to carry out risk assessments has formed the basis for many work injury claims in the past. In this new potentially dangerous working environment it is important that employers identify:-
- All hazards in the workplace
- Who may be impacted by these hazards
- Control measures taken to reduce risk
- An assessment of the reasonable degree of risk
There is a general misconception that employers are duly obliged to remove “all risks” from the workplace and working practices. In many cases this is just not possible, various practices will always carry a degree of risk but it is the safety procedures in place and the training which allows employers to cover themselves in the event of injuries. Eliminating risk would be the Holy Grail for the health and safety movement but in reality, it will never happen.
Key questions in the COVID-19 working environment
We’ve all seen the news, read the newspapers, scanned websites, and heard the rumours and counter rumours about COVID-19 in the workplace. However, there are a number of new key issues which employers will need to consider going forwards. These include:-
- Maintaining social distancing
Whether we are talking about 1 m or 2 m, social distancing in our everyday life and our working life is likely to be in place for some time to come. Employers need to ask themselves whether they can maintain social distancing at all times and how they will ensure that all employees, suppliers, clients, and visitors to their premises abide by the guidelines. The introduction of safety screens, barriers, one-way systems, and other safety measures will all need to be considered. We also know that many businesses have had to cut back on the number of employees in the office at any one time. This has led to “shift-work” with some employees working in the office some days and at home other days.
There will be occasions where it is difficult if not impossible to maintain social distancing/avoid a degree of contact in the workplace. In these hopefully rare scenarios, additional safety precautions will need to be introduced.
- Cleaning the workplace
It is a given that the workplace should be a clean, tidy, and safe environment – as much as possible. The focus on cleanliness has obviously increased dramatically in light of COVID-19 and this could be with us for some time to come. As a consequence, employers will need to consider how they can maintain a clean environment while also ensuring the safe well-being of those carrying out these regular “deep cleans”. It is likely that in some shape or form this will lead to increased costs for employers which may be difficult if not impossible to pass on in the current economic environment.
Personal protective equipment (PPE) has been very much in the news of late with supplies often thin on the ground and quality control sometimes left wanting. Going forward, employers will need to consider whether PPE is required in their workplace for employees and to what standard. Will they need clinically tested PPE equipment or will there be cheaper more appropriate options for the workplace. Employers already have a legal obligation to “enable employees to carry out their duty safely” but the introduction of COVID-19 has seen this issue become more important than ever.
- Monitoring the health of employees and their family
Who’d have thought we would be in a situation where some employers may be morally/legally bound to enquire about the well-being of not only their employees but also their family. This is an interesting angle when it comes to moral/legal obligations because yes, you could argue that an employer should enquire about the well-being of their employees and family in the current environment, but what about employees? Surely there must be a legal obligation on employees to make their employers/colleagues aware of COVID-19 infections in their household?
While employers have always had a legal obligation regarding the health and safety of their employees, in many ways the COVID-19 pandemic is also exposing the moral/legal responsibilities of employees.
- Managing communal facilities
Legally, employers are obliged to provide restroom facilities, with many also providing kitchen facilities and other communal services/areas. Managing kitchens and restrooms could become a legal and practical nightmare for employers going forward. Social distancing, wiping down surfaces and equipment while also ensuring that these facilities are available to employees in the workplace will be challenging to say the least. As we touched on above, the ongoing challenges of COVID-19 have not only highlighted the responsibilities of employees but also the fact that employers and employees need to work together – more closely than ever before.
The simple fact is that without employers and employees being “on the same page” there is the potential for misunderstandings and gaps in safety precautions. In the current environment, people’s lives could literally be at risk!
- Training, training, training
We have covered training in numerous articles in weeks gone by with particular focus on health and safety, working practices and the need to keep employees up-to-date with changes. Communicating the challenges associated with COVID-19 in the short, medium, and potentially long-term working environment might be difficult. We know from surveys and news articles that not everybody is taking the potential dangers associated with COVID-19 as seriously as they could/should do. Obviously, employers are legally obliged to ensure their employees are fully briefed and made aware of changes in the workplace. Whether all employees will be as meticulous regards to health and safety as they should be is a whole different issue.
Different obligations across different workplaces
The above guidance issued by the government offers what is described as “preventative measures” applicable to all working environments. However, there are some specialist workplaces where certain aspects will be challenging; social distancing might be difficult with different/innovative approaches to health and safety required. Originally the UK government advised all that employers who could work from home were to take the opportunity to do so. This guidance has been relaxed of late and the UK government is more focused on getting people back into the workplace in a safe/secure manner.
Interestingly, over the next few weeks, it is expected that employers will be given the power to decide whether employees should be in the workplace or working from home, in consultation with their workforce. Some suggest this is a passing of the buck while others believe it is the natural step towards putting the UK economy back on a sounder footing. When looking at personal injury compensation, employers will need to be confident in their ability to maintain a safe/secure workplace if they “advise” employees to return en masse to the workplace.
Employers, employees, customers, suppliers, and even insurance companies are entering the unknown as the UK economy starts to return to a degree of “normality” in light of the many COVID-19 challenges. Employers will need to ensure safety in the workplace; employees also have an obligation to act in an appropriate manner while customers/suppliers will also need to be cautious and wary. While little has been forthcoming from insurance companies regarding future cover for personal injury claims in the workplace, surely employers must be due an update soon?