COVID-19: Health & Safety for workplaces that are open, or planning to reopen

Which workplaces must close?

There are certain workplaces which must close, such as bars, restaurants (other than for food delivery and takeaway) and hair salons. Retail business must also cease, other than dealing with orders submitted online, by phone or by post, or if selling food for consumption off the premises. There are certain types of shop and similar businesses which are specifically permitted to stay open, such as supermarkets, pharmacies and car garages – the full list is here, in the 'exclusions' column.

Scottish Government guidance also advises that all other non-essential business premises in Scotland should remain closed. However, this is just guidance and is not backed by a law to enforce such closures. The UK Government, on the other hand, is encouraging business premises in England to open if: (i) they are not a business that has been ordered to close; and (ii) their staff cannot work from home.

If you are in any doubt as to whether your workplace can open, please get in touch.

Working from home where possible

In Scotland, it is currently an offence for a person to leave their home, other than with a 'reasonable excuse' (such as buying food or taking exercise). One of the'reasonable excuses' for leaving home is to travel to work, but only if it is not possible to work from home. As such, if a person can work from home, it will be an offence for them to leave their home in order to travel to a workplace.

In England, it is also an offence for a person to leave home to go to work, if it is reasonably possible for the work to be done from home.

UK Government guidance also states that: "everyone should work from home unless they cannot work from home".

Government guidance for workplaces that are open

The UK Government has produced eight guides, covering different types of workplace. Each guide covers issues such as risk assessments, social distancing, cleaning and workforce management.

Separate Scottish guidance for workplaces is anticipated in the near future. It remains to be seen if the Scottish guidance will differ significantly from the UK guidance. In the meantime, any workplace in Scotland which is open would be well-advised to consider the UK guidance, which is likely to be evidence of 'best practice' at least until specific Scottish guidance is published.However, the UK guidance makes clear that it should be considered alongside public health and safety requirements and legislation in Scotland. Scottish businesses must, therefore, also take account of relevant Scottish legislation – in particular, the Scottish legislation on social distancing which is discussed below.

Health and safety risk assessment

You have a duty, so far as is reasonably practicable, to ensure the health, safety and welfare of those working for you as well as those who physically interact with your business such as customers, contractors and delivery drivers.

If your workplace is open, but some employees can work from home, you should ensure that they do so.

For those in the workplace, you should carry out a specific risk assessment regarding the risks posed by COVID-19. This assessment should cover all aspects of your business activity, and consideration should be given to your employees' commute.

The UK Government guidance advises that, if possible, you should publish the results of your risk assessments on your website. Businesses with over 50 employees are 'expected' to publish their risk assessments on their website.

Consultation with employees / representatives

You have a legal duty to consult your employees on health and safety matters. Depending on your circumstances, this consultation will be with representatives appointed by trade unions, employee-appointed representatives, or employees directly – contact us if you need confirmation on who to consult with.

Your consultation should cover, for example, the measures you are introducing to manage COVID-19 risks. You should provide sufficient information to allow effective consultation. You should keep good written records of the consultation process, in order to evidence, if required at a later stage, that you have complied with this duty. Contact us if you need advice on your consultation obligations.

Implementation and review

Once you have identified risks and implemented control measures to reduce or eliminate those risks, you must take steps to enforce the use of those control measures. This is an evolving situation, and government advice could change as matters develop. You should therefore keep your risk assessment under review to take account of changing government advice and as your business operations develop.

Social distancing

In Scotland, all businesses that remain open have a legal duty to take all reasonable measures to comply with social distancing rules, in particular ensuring that a distance of two metres is maintained between people on the premises or waiting to enter the premises (other than members of the same household, or a carer and the person they are assisting). Failure to do so will be a criminal offence.

As noted above, the UK Government has produced eight guides, covering different types of workplace. Each guide includes advice on how to implement social distancing for that type of workplace. It also states that, where people cannot be 2 metres apart, you should manage the transmission risk by, for example, putting barriers in shared spaces, using shift patterns or fixed teams to minimise the number of people in contact with one another, or ensuring colleagues are facing away from each other. This guidance is relevant to Scotland, however, the social distancing rules in England are not backed by legislation, whereas in Scotland the legal duty to take all reasonable measures to ensure a 2-metre distance will apply and you will also need to take into account any additional Scottish Government guidance, once this is published.

Consider also whether you can help employees maintain social distancing when travelling to work – for example, can you change their working hours so they are travelling at quieter times, provide a car parking space near the workplace or encourage travel by foot or by bike?

In implementing social distancing, don't forget about your normal health and safety duties. For example:

• Does a reduction in staff on-site present a security / safety risk to those in the workplace?
• If a task had previously been assessed as requiring two people, but social distancing makes that impossible, how should you react - we discuss this in our blog.

Other health and safety measures

The eight guides produced by the UK Government include advice on measures you should take in addition to social distancing, for example, cleaning and the provision of handwashing facilities – you should read this guidance in full, and implement measures appropriate to your workplace. However, if your risk assessment identifies additional measures that are not in the guidance, you should also implement these measures.

There may be additional steps you need to take, from an employment law perspective, before you can implement certain health and safety measures. For example, putting a new shift system in place is likely to mean you will need to amend employees' contracts – if you need advice on this, please contact us. You should also consider your duty to consult on health and safety matters, discussed above.

Personal Protective Equipment (PPE) and face coverings

The UK Government guidance includes advice on PPE and face coverings. The Scottish Government has also issued guidance on the use of face coverings. You should read both sets of guidance, and consider, via your risk assessment, whether PPE is required in your workplace.If you need advice on what is appropriate in your workplace, please contact us.

Testing staff, temperature checks and using contact-tracing apps

Brodies data protection team blog COVID-19: managing data protection issues as we move into the next phase, has guidance on the data protection issues for employers regarding the UK Government's contact-tracing app, and testing staff for COVID-19 (including temperature checks or health questionnaires).

Workplace canteens

Workplace canteens must close (other than those in hospitals, care homes, schools, prisons and defence establishments) unless there are no practical alternatives in terms of providing food for staff or a space for breaks. If you need to keep a canteen open, encourage staff to bring their own food and minimise the number of people there at any one time via rotas, so as to comply with social distancing rules.

Don't provide communal kitchen items, such as mugs or cutlery – ask workers to bring their own and wash them at home each day.

Taking workers off furlough

We have separate FAQs on 'ending furlough' which cover questions such as:

• How do we end a period of furlough?
• How do we choose which employees to take off furlough?
• What can we do if an employee refuses to come off furlough and return to work?

What if someone is unwell?

You should communicate regularly to your workers, and others using your premises, that they should follow the government rules on self-isolation if they have symptoms of COVID-19.

If someone becomes unwell at work with symptoms of COVID-19, you should send them home and advise them to remain at home in line with the government rules on self-isolation. See our Employment FAQs for more on sick pay and self-isolation notes.

The Health and Safety Executive has also clarified that, in certain circumstances, employers must report new cases of COVID-19 under RIDDOR - this is discussed in our blog Navigating COVID-19: reporting requirements under RIDDOR.

Pregnant employees

Pregnant women are classed as being at greater risk from COVID-19. Government advice is that pregnant employees should work from home where possible. If it is not possible for pregnant employees to work from home in their normal role, you should consider whether there is suitable alternative work available that they can do from home and, if so, offer this work.

If there is no suitable alternative work that can be done from home, you should carry out a risk assessment regarding their current on-site role. Can you implement measures to avoid the risks associated with COVID-19? In particular, UK Government guidance advises that pregnant employees should keep 2m distance from others. Businesses in Scotland also have the legal duty (discussed above) as regards social distancing. To avoid risks, and implement social distancing, you may need to alter working conditions or hours of work.

If this is not reasonable or you cannot avoid the risks in her current role, is there a suitable alternative on-site role available that is safe (in light of a risk assessment of that alternative role)?If so, offer this work.

If there are no roles which would allow a pregnant employee to keep 2m distance from others, the UK Government guidance advises that you should carefully assess whether the work involves an acceptable level of risk - however, we would advise that you contact us for advice before allowing a pregnant employee to work in a role in which she cannot maintain 2m social distancing.

If there is no suitable alternative work, or the employee reasonably refuses it, it is likely that you will need to suspend the employee on full pay for as long as necessary to avoid the risks posed by COVID-19. If the employee unreasonably refuses your offer of suitable alternative work, you can suspend them without pay for as long as necessary to avoid the risk. If a maternity suspension starts after the beginning of the 4th week before the expected week of childbirth (but before your employee's chosen maternity leave start date) maternity leave will start automatically on the day after the first day of her absence in that 4-week period.

As to whether placing a pregnant employee on 'furlough' via the Coronavirus Job Retention Scheme is an option, rather than maternity suspension on full pay, you should contact us for advice on your particular circumstances. It is unlawful to select a woman for furlough because she is pregnant, in order to avoid your health and safety obligations to adapt her role, offer her alternative work, or suspend her on full pay. Contact us to discuss your individual circumstances.

Individuals who are 'shielding'

Some individuals, with particular underlying health conditions, have been asked to stay at home for at least 12 weeks – referred to as 'shielding'. If you have employees in this category, you should not ask them to come to the workplace. If they cannot work from home in their current role, you may want to consider whether there is an alternative role they can do from home. However, this would be a change to their terms and conditions, meaning you should get agreement - if they won't agree, contact us to discuss your options.Otherwise, you can find information on pay / sick pay and 'furlough' for these employees (via the Coronavirus Job Retention Scheme) in our Employment FAQs.

Employees aged 70 or over, or with underlying health conditions (which increase their risk, but who are not in the 'shielding' group)

Arrange for these employees to work from home in their current role, if possible.

If this is not possible, UK Government guidance advises that you should consider if there is an alternative role they can do from home. However, this would be a change to their terms and conditions, meaning you should get agreement – if they won't agree, contact us to discuss your options.

If this is not possible, consider the following:

• Carry out a risk assessment regarding their current on-site role. Can you implement measures to control risks? In particular, UK Government guidance advises that these employees should keep 2m distance from others.
• If this is not possible in their current role, the guidance advises that they should be offered the option of the safest available on-site roles, enabling them to stay 2m from others.
• The guidance advises that if they have to spend time within 2m of others, you should carefully assess whether this involves an acceptable level of risk. Businesses in Scotland also have the legal duty discussed above as regards social distancing. Contact us if you need advice in this situation.
• If any employee (including those over 70, or with an underlying health condition) refuses to attend work, because (i) they reasonably believe that there is a 'serious and imminent danger' – which could be the case if you have not taken suitable steps to protect against coronavirus; and (ii) the employee cannot reasonably be expected to avert the danger (for example, by maintaining social distancing and adhering to other measures you have put in place), then it would be automatically unfair for you to dismiss them, and unlawful for you to subject them to a detriment (such as a disciplinary sanction) as a result.
• If an employee is disabled, you may need to make 'reasonable adjustments'.
• Insisting that these individuals attend at a workplace could amount to age or disability discrimination, unless you can objectively justify your approach.
• If they are not at work, what will you pay them? This is discussed in our Employment FAQs.
• Can you place these employees on 'furlough' via the Coronavirus Job Retention Scheme? This is discussed in our FAQs on the furlough scheme.

What if a worker lives with a vulnerable person, or is just concerned about coming to work?

If an employee is not vulnerable themselves, they may still be reluctant to attend work due to concerns about COVID-19, particularly if they live with a vulnerable person. As with all employees at present, they should be working from home if possible. However, if this is not possible, consider the following:

• Listen to their concerns, and reassure them as far as possible, highlighting the steps you are taking to reduce risks.UK Government guidance on workplaces states that you should pay 'particular attention' to those who live with individuals who are shielding, but gives no other specific guidance on managing these individuals.
• If appropriate, explore alternative working arrangements. You might want to explore whether they can do an alternative role from home, perhaps on a temporary basis,but this would be a change to their terms and conditions.
• If they don't come to work, they won't be entitled to statutory sick pay, and it is unlikely you will want to pay them as normal.
• Government guidance on furlough advises that an individual can be furloughed if they are unable to work because they need to stay at home with someone who is 'shielding'.
• In some cases, you might want to suggest that they take a period of annual or unpaid leave.
• Ultimately, in some cases, it may be appropriate to commence disciplinary proceedings on the basis of their non-attendance but you should always follow a fair disciplinary process, and consider all the circumstances. In particular, bear in mind that if an employee refuses to attend work, because (i) they reasonably believe that there is a 'serious and imminent danger' – which could be the case if you have not taken suitable steps to protect against coronavirus; and (ii) the employee cannot reasonably be expected to avert the danger (for example, by maintaining social distancing and adhering to other measures you have put in place), then it would be automatically unfair for you to dismiss them, and unlawful for you to subject them to a detriment (such as a disciplinary sanction) as a result.

New recruits

If you have been facing staff shortages, and have had to recruit new workers quickly, you may need to streamline your usual induction process. However, you must still ensure workers are given at least the basic training they need to carry out their role safely and competently, including training on specific health and safety relevant to their role, and fire safety. Ensure you have evidence of new recruits' tickets/licences to operate machinery, such as forklift trucks (if appropriate).

Delivery drivers: access to welfare facilities

You must continue to allow third-party delivery drivers reasonable access to your welfare facilities (i.e. toilets and handwashing facilities) if they are visiting your premises as part of their work. The HSE has issued updated guidance stating that a failure to do so is against the law.

What about homeworkers?

We discuss this in our update: Health and safety of homeworkers.

What are the risks for us as employers?

Clearly, if you don't follow the guidance discussed above, you are putting your workers at greater risk of contracting COVID-19. This will impact on them personally, and if the virus becomes widespread in your organisation, you are likely to face significant levels of absence.

You should also consider your specific legal duties which, if breached, could result in further action in the criminal courts. The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 provide that certain businesses must close, and that all businesses that remain open must take all reasonable measures to comply with social distancing rules. The Regulations make it a criminal offence to breach these rules. Penalties include a fixed penalty notice, or prosecution and an unlimited fine, if convicted. They also give powers to police officers and local authorities to issue Prohibition Notices which require the business or individual served with the Notice to stop doing something. This could be a specific work task or it could be as wide ranging as to force all work to stop until the officer issuing the Notice considers that the Regulations are no longer being breached.

You also have a legal obligation to ensure, so far as reasonably practicable, the health, safety and welfare of your employees whilst at work. Breaching existing health and safety obligations (potentially including a failure to take suitable and sufficient action to prevent the spread of COVID-19) could result in investigation and/or prosecution of the business and/or its officers/directors/managers as individuals under the Health and Safety at Work etc. Act 1974.

The HSE has also published guidance on when a case of COVID-19 must be reported under RIDDOR. This is discussed in our blog Navigating COVID-19: reporting requirements under RIDDOR. Missing a reporting requirement under RIDDOR is, of itself, a criminal offence.

In summary, therefore, risks include:

• Legal obligation for certain businesses to close; and for those that remain open to adhere to social distancing rules, set out in the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020, resulting in a prosecution and fine if breached.
• Investigation of the company/business by regulators (including the police, HSE or Local Authority) which could, if they consider health & safety law has been broken, result in criminal prosecution with penalties including potentially unlimited fines.
• Individuals within the business (managers/directors etc) could also face prosecution for similar offences. If convicted, potential penalties include prison sentences of up to 2 years and/or a substantial financial penalty.
• Missing a reporting requirement under RIDDOR in relation to COVID-19 and thereby committing a criminal offence.
• Claims for personal injury being presented by workers who have contracted COVID-19 (or other injury) as a result of the business' failings.
• In theory, employees resigning and claiming constructive unfair dismissal, although, in the short-term, given the current employment climate, this is perhaps less likely than would normally be the case.
• Automatic unfair dismissal, or detriment claims, in an employment tribunal, if you dismiss an employee or subject them to a detriment (such as disciplinary action) because they refuse to attend work in circumstances where they reasonably believe that there is a risk of contracting coronavirus due to insufficient protective measures in the workplace.
• Unlawful discrimination, particularly on grounds of age, pregnancy or disability.
• Risk to your business reputation.

Consider your insurance position carefully

In addition to ensuring safe working practices, it is important to ensure that, in the event of an investigation or claim you will be covered by your existing insurance policies. Some business insurance cover is dependent on disclosure of material changes in operating circumstances. Whilst insurers are deemed to be well aware of COVID-19, they may not be aware of the specific way in which it is impacting your business and the steps you are taking to adapt.

To ensure you don't fall foul of a notification requirement, you should make sure your insurer or brokers have been updated with the steps you have taken to adapt working practices and insurers should be asked to confirm in writing that the arrangements satisfy the policy requirements.