The final stage of Government’s Covid-19 roadmap for England began on Monday 19 July 2021, after being delayed from 21 June, with the lifting of most remaining legal restrictions imposed at the outset of the pandemic. These include laws requiring the closure of businesses such as nightclubs and limits on private and public gatherings and events.
However, for those expecting a “big bang” – particularly when it comes to returning to the office and other workplaces – you will be forgiven for having missed it. In the face of rising cases, expected by the exit wave models but nonetheless of concern, the Government has poured cold water on returning to the office all at once.
What are the legal considerations and what does the Government expect?
In announcing the final stage of the roadmap, the Government made clear that it would “…expect and recommend a gradual return to offices over the summer”, despite there no longer being any legal limits on gatherings.
In our experience, this approach is consistent with the plans of many office-based employers, given that there are legal risks associated with the return to the office, especially during a time of high prevalence of cases.
Additionally, for the next couple of months there will be a period when not all of those who want to have the protection of two doses of the vaccine will have received their jabs. These individuals, who will likely be among the younger staff members in your organisation, may argue that they should not be required to return until a short while after they have received their second dose.
Irrespective of the Government’s expectations, there is therefore good reason to adopt a slow and steady approach to the return to the workplace for those who have largely been working from home for more than a year.
2. Guidance is still important
The Government has recently published its updated guidance for offices, factories and labs to help with continuing to work safely during the pandemic, which is available here.
The guidance makes it clear that employers should discuss the return to the office with their staff in order to reach a set of working arrangements which balance business and individual needs. Employers should keep abreast of changes to the guidance to ensure they are on top of changes in the scientific understanding of the virus and regularly consider whether their health and safety measures to minimise transmission remain adequate.
The guidance sets out priority actions to protect staff such as ensuring adequate ventilation and frequent cleaning. We discuss these measures in more detail in our ten-step guide to reopening offices which can be found here. Additionally, employers should consider workers at higher risk from the virus and those facing issues with mental and physical health. The government is expected to review its advice and guidance in early September.
Employers should consider whether they should implement a testing regime in order to reduce the prospect of infectious individuals entering the office. Vaccines are another potential variable in employers’ assessment of workplace risk. However, in view of recent data suggesting that vaccination does not entirely prevent infection or transmission of the virus (but instead reduces the severity of symptoms) an approach which prevents the unvaccinated from returning to the office may be hard to justify or even to police, given the data protection issues associated with collecting vaccine status.
On the other hand, the Government has revived the prospect of domestic vaccine passports in the face of lower uptake amongst younger age groups, which means there may be more of a case to implement a policy requiring vaccines. However, given that transmission is possible from the vaccinated and the unvaccinated there are questions as to the rationality of this approach particularly if it is used as a replacement for regular testing.
3. Employee relations issues
Given that infection rates remain high and not all staff will have had the opportunity to receive two jabs of the vaccine, employers should be mindful that employees may be hesitant in returning to the office. All concerns raised should be listened to and considered on a consistent basis.
Any number of employee relations issues may arise in the face of efforts to return staff to the office, but there is no doubt that some reasons for wanting to continue working from home will be more justifiable than others. Whilst the thought of returning to a long commute and separation from the puppy acquired during lockdown may be unpalatable for some, their case will probably not be as compelling as those who are particularly vulnerable or who live with anyone who has clinical vulnerabilities. For other potential employee relations issues which you may face in bringing staff back to the office, see our roadmap back to the office here.
Other cases are more difficult. A recent trend is for workers to avoid the City in the weeks leading up to a holiday abroad so as to minimise the risk of having to self-isolate, given how much that could disrupt travel plans. For an in-depth discussion of the travel restrictions currently in place and what they mean for employers, see our recent article Green means go – navigating employee foreign holiday plans under the Government’s traffic light system here.
In light of these issues and Government guidance it is unlikely that workplaces will be busy at least until September. However, employers should keep their decisions under review so far as possible in case circumstances change: many experts have, for example, warned that autumn and winter may bring a resurgence of other respiratory viruses which have not been in wide circulation for the past two years.
If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak to your usual Fox Williams contact.
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