Requirements mandated by law or any official guidance.
Employers are under a legal duty “so far as is reasonably practicable” to provide and maintain safe places of work, safe systems of work and adequate facilities for welfare, and to provide employees with sufficient information and training. The law requires employers to:
- undertake a risk assessment;
- set up safe systems of work, informed by their risk assessment;
- implement those safe systems of work;
- keep those systems under review.
The government has issued guidance to assist employers with their legal duties on how to run your business safely during the Coronavirus pandemic. Employers should follow the steps set out in the relevant guidance for their workplaces, taking into account the size and type of their business – but this does not replace existing health and safety law. In addition, compliance with the guidance is not a “safe harbour” and employers may still be liable at common law for negligence and/or breach of the health and safety legislation.
Measures typically implemented by employers and the associated legal risks, limitations, obligations and issues to consider.
Some employers are nominating an individual who is responsible for monitoring and ensuring compliance with COVID-19 rules and regulations. Employers are also consulting with employee representatives/a health and safety committee on safety issues. Where social distancing requirements cannot be achieved in the workplace, employers are taking steps to manage transmission risk – making physical workplace modifications (e.g. putting barriers in shared spaces) and adopting other measures to minimise the number of contacts each employee has (e.g. creating workplace shift patterns or fixed teams). In addition to providing training on the new workplace procedures, employers are communicating clearly on safety issues to ensure employees understand what is required and that they feel safe. Once the safety procedures are in place, employers must monitor to check that the workforce is complying with the safety rules, and intervene quickly if workers are not acting appropriately.
Many employers are exploring temperature checks, antibody testing and the use of contact tracing apps, but these raise significant privacy issues. The Information Commissioner’s Office has published workplace testing guidance which recommends that organisations planning to undertake testing and processing health information should carry out a data protection impact assessment focussing on the new areas of risk, and should only retain the minimum amount of information necessary.