From 4 July, pubs, restaurants, hairdressers, hotels and other outdoor activities in the United Kingdom reopened but are required to comply with new guidance announced 23 June. To facilitate their opening, the well-established two-metre social distancing rule will change to “one metre plus.” This further easing of lockdown restrictions will affect employers and employees alike.
This LawFlash supplements our detailed prior analysis for employers seeking to reopen the workplace in the wake of the coronavirus (COVID-19) pandemic.
From 4 July 2020, pubs and restaurants will be permitted to reopen, provided they adhere to the latest government guidance. Indoor hospitality will be limited to table service, and minimal staff and customer contact will be encouraged. Hairdressers will also be permitted to reopen with appropriate precautions.
Overnight breaks can resume in self-contained accommodation, including hotels and campsites, as long as shared facilities are kept clean and no more than two households stay together. Most leisure facilities and tourist attractions, including outdoor gyms, cinemas, museums, theme parks, and libraries, will reopen if they can do so safely.
However, close proximity venues such as nightclubs, indoor gyms, swimming pools, spas, and soft-play areas will need to remain closed.
With a view to assisting restaurants, pubs, and hairdressers to reopen effectively, the current two-metre social distancing rule will be retained with an added caveat: where it is not possible to keep a two-metre distance, people should keep a social distance of "one metre plus." This means that people should remain one metre apart while taking mitigations to reduce the risk of transmission.
All return to work guidance has been updated to reflect the change to the two-metre rule, but employers should still make every reasonable effort to enable employees to work remotely.
The mitigations will depend on the workplace or setting and it is advisable to set out mitigations in the risk assessment. For example, on public transport, people must wear a face covering as it is not always possible to stay two metres apart. Examples include the following:
Mitigations must be effective. For example, guidance states that additional personal protective equipment (PPE) beyond what you usually wear is not beneficial; COVID-19 needs to be managed through social distancing and hygiene, not through the use of PPE. Risk assessments should clarify that the role of PPE in providing additional protection is extremely limited, and it is unlikely that employers outside of a clinical setting will be required to provide PPE to all employees free of charge; employers are advised to manage employee expectations accordingly. Nevertheless, workers should not be prevented from wearing face coverings if they wish to do so.
Where workers cannot follow social distancing, they should only work together up to 15 minutes at a time. This does not permit employers to place employees in unsafe working environments and the usual health and safety duties continue to apply.
Employers must also be mindful of the needs of extremely clinically vulnerable individuals and clinically vulnerable individuals. Clinically vulnerable individuals who cannot work from home are subject to the same social distancing guidelines as the rest of the workforce.
The updated guidance for offices and contact centres reinforces the requirement for employers to carry out appropriate COVID-19 risk assessments and stresses that this must be done in consultation with a health and safety representative selected by a recognised trade union or a worker representative.
While employers cannot completely eliminate the risk of COVID-19, employers need to consider security implications of their decisions as any new or altered security risks may require mitigation. Employers with fewer than five workers are not required to have the risk assessment in writing. However, the requirement for employers with more than 50 workers to publish their risk assessment online has not changed. These employers are now also expected to display a notification of the risk assessment in the workplace, to assure employees that government guidance is being followed.
Employees who feel scared to return to the workplace or believe that their employer has failed to take adequate steps to mitigate the risks of COVID-19 can report concerns to their local authority or the Health and Safety Executive (HSE). For this reason, it is imperative that employers communicate effectively with employees to eliminate misplaced fears that could cause unnecessary disputes.
Regulators will also be carrying out compliance checks to ensure that employers are complying with government guidance. Failure to complete a risk assessment could constitute a breach of health and safety laws. HSE and the employer’s local authority have the power to issue enforcement notices in the event of noncompliance with government guidelines. Failure to comply with enforcement notices can constitute a criminal offence and lead to serious fines and/or imprisonment for up to two years. This way, the government guidance attracts indirect legal enforceability and must be adhered to wherever possible.
In addition to COVID-19, employers should be aware of the importance of mental health at times of uncertainty. The government has published specific guidance on this matter.
At this time, when some of the financial responsibility for furloughed staff will be passed to employers from August 2020 and when employers can now avail themselves of a flexible furlough shift pattern from July 2020, employers should consider longer-term workforce planning and contractual changes. Employers should also consider if redundancy proposals are justified by the anticipated workforce needs and financial considerations.
The United Kingdom has delayed its launch of the NHS Test and Trace app until the autumn. Employers, however, are advised to keep a temporary record of staff shift patterns for 21 days, which can be provided to NHS Test and Trace if needed.
Businesses due to open on 4 July are likely to have booking systems in place, but if they do not, they should keep a record of all customers and visitors that enter the premises. We are expecting an update to the NHS Test and Trace guidance to be published shortly.
Employers must ensure that individuals who are advised to stay at home under existing government guidance do not physically come into work. This includes individuals who have COVID-19 symptoms, individuals who live in a household or support bubble with someone who has symptoms, or those who are advised to self-isolate as part of the NHS Test and Trace service.
For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. Find resources on how to cope with the post-pandemic reality on our NOW. NORMAL. NEXT. page and our COVID-19 page to help keep you on top of developments as they unfold. If you would like to receive a digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts, and download our COVID-19 Legal Issue Compendium.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
London
Matthew Howse
Louise Skinner
Trainee solicitor Sol Gelsomino contributed to this article.