Managing workplace safety: getting back to business

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Partner Jon Cooper and managing associate Ashley Borthwick, at law firm Womble Bond Dickinson, explain what you need to know to get back to business with health and safety in mind.

If you are interested in finding out more about this issue, Womble Bond Dickinson is hosting a Health and Safety webinar on 28 July. Sign up here.

At the start of lockdown, the Health and Safety Executive's (HSE) general approach was to work with employers to ensure compliance and to issue enforcement notices to help secure improvements where appropriate.

However, as the phased return to work has progressed, the general tone has changed. HSE is now making it plain that prosecution will be a consideration in appropriate cases. It has reported over 1000 spot checks after it resumed inspections at the end of May.

If working from home becomes the new normal, resulting in new working arrangements for larger numbers of workers than before lockdown, then we expect the HSE to begin to look more rigorously at what measures employers are taking to ensure the safety of these workers.

Here is what businesses need to know about the latest guidance:

Social distancing: two metres/one metre plus with mitigation.

The two metre rule has been relaxed in favour of a one metre plus approach. Employers are now advised to maintain a distance of two metres or one metre with risk mitigation where two metres is not viable. The primary objective remains to maintain a two metre distance where possible.

Vulnerable workers

Employers should take into specific consideration any workers who may be particularly vulnerable. This includes ‘clinically extremely vulnerable’ workers who have been advised that they should be shielded by remaining at home and also applies to workers living with someone in the shielded group.

The HSE states that shielded workers cannot return to workplaces before at least 31 July 2020 in Scotland, from 1 August 2020 in England and from 16 August 2020 in Wales when shielding is paused.

Businesses need to put in place controls to reduce the risk to those individuals:

Taking every possible step to enable working from home.

If working from home is not possible, regularly reviewing your risk assessment and do everything ‘reasonably practicable’ to protect those workers from harm eg offering the option of the safest available on site roles, enabling them to maintain social distancing guidelines (two metres, or one metre with risk mitigation where two metres is not viable);

If they cannot maintain social distancing, you should carefully assess whether this involves an acceptable level of risk.

PPE – face masks

The guidance (presently) remains that the use of personal protective equipment (PPE), such as face masks and visors, should be a last resort. The guidelines for non-medical workplaces state that the risk of Covid-19 ‘… needs to be managed through social distancing, hygiene and fixed teams or partnering, not through the use of PPE.’

Employers should stress that the control measures put in place to reduce the spread of Covid-19, such as those relating to hygiene and social distancing, must still be adhered to by those who chose to wear PPE. There is a danger that the use of PPE provides a false sense of security, and may increase the risk of transmission if not used and disposed of appropriately. It is however recognised that some workers feel more comfortable wearing a face mask even if it is not required by their employer. Employers are encouraged to support these workers by, for example, providing information regarding their safe use and disposal.

Temperature screening

Temperature screening is not a recommendation in the guidelines. However, this practice has been adopted by a number of organisations as an initial warning system, particularly those in the manufacturing and construction sectors.

Issues to consider are:

Information relating to temperature screening will need to be processed in accordance with data protection laws. The UK data protection regulator, the ICO, has produced guidance for employers relating to this issue (see here).

A transparent and fair policy needs to be implemented in relation to who is tested and when to prevent any allegations relating to victimisation and/or discrimination.
Ensuring that the screening process (including communication of results) is conducted in a way that respects the individual's privacy.
Providing training to those conducting the testing and put in place control measures to ensure their safety.
Be clear on the process to be followed in the event that a temperature test result is disputed.

Working from home – the new norm?

Employers have the same health and safety responsibilities for home workers as for any other workers. HSE has developed its guidance on the issues that employers should consider specifically in relation to home workers (see here) including:

Keeping in touch with home workers to ensure that they are supported, have appropriate supervision and do not feel isolated.
Assessing and managing the risks of using display screen equipment such as computers and laptops. A workstation assessment should be carried out in respect of people working from home on a long term basis and regularly reviewed.
Managing work related stress via, for example, communication, support and providing additional resource.

NHS Test &Trace

The NHS Test & Trace Service provides testing for anyone who has symptoms of Covid-19, traces and alerts ‘close recent contacts’, and, where necessary, notifies them of the need to self isolate to help stop the spread of the virus. Guidance has been published for employers (see here). Employers are encouraged to support workers who are required to self isolate; for example, by not placing pressure on workers to return to work, finding alternative work from home if appropriate (this may include finding an alternative role), and ensuring that the worker is receiving sick pay if working at home is not possible.

Appointing a central point of contact in the business to assist the NHS tracers in the event that a worker tests positive could help to limit the scope of business disruption, especially if strict social distancing measures are being observed.

More guidelines but the general approach remains the same

The official guidelines are available here, and can be summarised as:.

Carry out a Covid-19 risk assessment.
Develop cleaning, hand washing and hygiene procedures.
Help people to work from home.
Maintain two metre social distancing, where possible.
Where people cannot be two metres apart, manage transmission risk.

We are here to help

Should you have any queries or require any assistance in relation to workplace health and safety matters, our dedicated health and safety team would be delighted to assist.

If you are interested in finding out more about this issue, Womble Bond Dickinson is hosting a Health and Safety webinar on 28 July. Sign up here.