Returning to the office in Scotland: considerations for employers

With the whole of Scotland moving to Level 0 on 19 July 2021, and the Scottish Government announcing a provisional plan for all "major" Covid-19 restrictions to be lifted on 9 August 2021 (provided that "all necessary vaccination and harm reduction measures are met") – what should employers be thinking about when planning for a return to the office?

When can we have employees back in the office?

On 2 July 2021, the Scottish Government published new guidance (Coronavirus (COVID-19): returning to offices, available here). It was initially indicated that a "phased and limited return to offices" would begin in Level 0 (on 19 July 2021). However, this guidance has now changed as a result of rising case numbers, and a return to the office has been postponed until "we move beyond Level 0". 

It is currently intended that from 9 August 2021 (provided that the "gateway condition" is met):

• Non-essential offices can re-open, subject to complying with all relevant government guidance including further guidance on baseline measures which is to be published by the end of July.
• Planning should be based around appropriate COVID-19 risk assessments and safe systems of work. The risk assessment should be used to: (i) identify what work activity or situations might cause transmission of the virus; (ii) think about who could be at risk; (iii) decide how likely it is that someone could be exposed; and (iv) act to remove the activity or situation, or if this isn't possible, control the risk.

This means that employers should consider, for example: (i) whether enhanced cleaning and sanitation measures are required; (ii) whether additional signage (e.g. reminding employees to wash their hands) should be used; (iii) whether it is necessary to make any changes to the system of ventilation; (iv) whether PPE is required; and/ or (v) whether it is necessary to carry out health screening of employees or visitors prior to entry in to the office. 

Notwithstanding the above, the Scottish Government notes that working from home "will continue to be an important mitigation for controlling the virus" and asks that employers continue to support employees to do this "in consultation with employees".

What are the physical distancing requirements?

If restrictions are lifted on 9 August 2021, as currently planned, then social distancing will no longer be required in offices from that date.

How should we prioritise which employees should return to the office first?

In a phased return to the workplace, think about which staff to prioritise. The guidance acknowledges that each workplace will have its own unique circumstances, however, when considering who should return first think about those who would benefit on grounds of mental health or disability; those who have less appropriate settings for working at home; those required in the workplace for priority business reasons; those new to the organisation and who require training/mentoring and those required to support that; those who would benefit most from collaborative working in person; and the provision of first aid and fire safety duty holders.

The guidance envisages that the preparation for a return (from 9 August 2021) would include discussions with the workforce. This should address any concerns employees might have about continuing to work from home / returning to the office, including options for those who are on the shielding list, and members of their household, who might benefit from continued homeworking.

The guidance also recommends that businesses preparing to re-open consider how employees will be travelling to work, and whether staggered start and finish times may be appropriate.

Do employees need to wear face masks?

At present, all employees in offices in Scotland are required to wear face coverings in communal areas in the workplace (passageways, stairs, lifts, staff rooms, training rooms, changing rooms or entrances) unless they are separated by either a partition or a distance of at least 2 metres.

There are limited exceptions (including, but not limited to, (i) where a person is eating or drinking in a canteen; (ii) where wearing a mask would cause severe distress; or (iii) the person is unable to wear a mask as a result of a disability.

It is not yet known whether masks will continue to be required in offices after 9 August 2021.

Do we need to provide PPE to employees?

Employers are not required to pay for face coverings for employees because they are not classed as PPE. However, it is good practice for employers to keep a supply in the event that an employee or visitor has forgotten their mask.

The Scottish Government and HSE recommend that employers consider whether any additional PPE is required as part of a risk assessment. Where PPE is deemed necessary, an adequate supply and quality must be maintained and provided free of charge to employees.

Do we need to carry out health screening checks for employees and/ or visitors to our offices?

Employers are legally required to do what is "reasonably practicable" to protect the health and safety or employees and others attending your offices. 

As part of a risk assessment, employers may wish to consider asking employees or visitors to complete a checklist prior to attending the office. This could, for example, ask for confirmation that the employee or visitor has not tested positive for COVID-19, has not recently come into contact with someone with COVID-19 symptoms, and has not recently returned from a country in which quarantine would be required).

Can we have workplace social gatherings again?

As we begin to consider whether we may be able to meet with colleagues again in a social capacity, the restrictions in Level 0 are as follows: 

• up to 10 people from 4 households can meet in an indoor public place like a café, pub, or restaurant; and
• up to 15 people from 15 different households can meet outdoors.

From 9 August 2021, it is envisaged that restrictions on the numbers attending social gatherings will be lifted.

How can Brodies help?

If you have any queries about any of the issues raised in this blog, please contact either Louise Usher or Emma Dyson, or your usual contact at Brodies.

Workbox by Brodies, our HR and employment law site, has lots of useful guidance and policies on COVID-19 related workplace issues, including health and safety. We also now have an example COVID-19 office policy available.