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Lawful employment

Rob Biddlecombe, Environmental, Safety & Health Practice, Squire Patton Boggs explains the legal obligations for FMs in ensuring employees’ safe return to work

The Government announcement in early May of a ‘conditional plan ’ to ease the national lockdown and for a phased return to work has encouraged many businesses to accelerate their own plans to re-open as soon as possible. However, the COVID-19 pandemic continues, and avoiding the risk of a ‘second spike’ in the rate of infections is central to Government planning. Against this background, what legal issues should facilities managers be considering as we prepare to emerge from lockdown?

Despite the pandemic, the basic principles of health and safety law in the UK continue to apply. In particular, employers remain under a duty to ensure, so far as reasonably practicable, the health and safety of employees and others (such as contractors and members of the public) who may be affected by their undertaking. This includes a duty to reduce the risk from COVID-19 as low as reasonably practicable. In addition, a suitable and sufficient assessment of risks (including those posed by COVID-19) by an employer still underpins health and safety management.

Following Government guidance represents basic evidence that an employer is discharging these duties. However, the guidance is frequently being updated as we learn more about the risks from COVID-19. It is important, therefore, for facilities managers to keep up to date with the latest guidance and adapt their health and safety arrangements to reflect the current position. By retaining copies of the various iterations of guidance in force during the pandemic, an employer should find it easier to demonstrate that its arrangements at a particular time were consistent with the guidance that then applied.

There are, of course, reciprocal duties on employees who must take reasonable care of their own health and safety and that of their co-workers, and also co-operate with employers in relation to health and safety matters. Tackling the risk from COVID-19 is, therefore, a collaborative effort on the part of employers and employees.

What arrangements need to be made to bring facilities safely back into use? If there is any plant and machinery (for example, heating, ventilation and air conditioning systems) which has been idle or infrequently used during lockdown, you should consider having it inspected by an engineer before restoring it to full use. In particular, for any lifting equipment or pressure systems, you should check whether they are now overdue thorough examination and testing. If the water system within a building has not been used for a while, a legionella test may be prudent, particularly in older buildings. The fire detection systems should also be tested to confirm they remain operational.

Some facilities may be considering a ‘deep clean’ before re-opening. If so, they should ensure that cleaning staff are properly supervised to ensure that the cleaning is carried out safely and effectively, and any necessary PPE is made available for those handling powerful detergents or bleaches.

It should be remembered that the Government’s guidance is still that workers should work from home unless they cannot do so. Therefore, for the foreseeable future, many in the workforce (including office workers) will continue to do so.

Nevertheless, when the time comes for them to return to work, many employees will, understandably, be anxious at the prospect. Employers are under a legal duty to share details of their risk assessment with employees. However, by effectively communicating the measures that they are taking to counter COVID-19 in their facilities, employers should be able to reassure their workers that the risk is being reduced as low as reasonably practicable. For example, policies and procedures regarding the need for regular and thorough handwashing, the provision and use of PPE, disinfecting of frequently-touched surfaces, and controlling access by visitors should be clearly conveyed and repeated.

If workers who fall within the Government’s definition of being “clinically vulnerable ” are due to return to work, the employer should consider what additional arrangements can be made to protect them specifically. Workers who fall within the category of being “clinically extremely vulnerable” should continue to shield themselves at home and not return to work.

Employers should plan so that, as part of any phased return to work, standard activities can be carried out safely. For example, employees with safety-critical roles (for example, supervisors or first-aiders) should be reintroduced to the workplace early enough to protect the rest of the workforce.

Whilst there is already a statutory duty to consult with employees, employers should seek to bring them “on board” with their approach by engaging with them as soon as possible, behaving transparently and acting on feedback where appropriate.

Social distancing in facilities may prove to be a major challenge and employers must be creative in developing solutions. Employers are being encouraged to arrange employees so that they work side-by-side or facing away from each other, group them into small cohorts, and stagger the start and end of the working day to avoid bottlenecking. Redesign of the workplace to allow for two metre gaps between workstations and one-way corridors should also be considered. Employees must be discouraged from congregating in communal areas, such as kitchen and canteen areas.

The significance of health and safety leadership is widely acknowledged. Given the challenges businesses face, leadership will also be key to addressing COVID-19. As you prepare to open up your facilities, it will be important for there to be ‘champions’ at all levels of the business (from the boardroom to the shop floor) who lead by example in following policy and procedure and will challenge poor practice.

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