I am afraid of returning to the workplace due to a fear of contracting COVID-19. Can my employer require me to return to my place of work?
The answer to this will inevitably depend on the individuals circumstances. In line with government guidance, employees should not be attending the workplace if, for example, they have tested positive for COVID-19 (or there are further government directions not to do so).
If an employee refuses to attend the workplace without a reasonable reason, then an employer could commence a disciplinary process against them on the basis of unauthorised absences and/or that they have refused to comply with a reasonable management instruction.
If an employee has a reasonable belief that their workplace poses a serious and imminent threat to them or others, however, then they may be protected from being subjected to a detriment or being dismissed if they refuse to attend work, but they would have to be able to show that their concerns related to their workplace, rather than just being general in nature.
If you have personal concerns about returning to the office, we would recommend that you speak to your employer and invite them to address your concerns.
What steps must my employer take to manage the risks of COVID-19?
Whilst your employer may be able to require you to return to the workplace, they are still required to comply with their obligations under the Health and Safety at Work etc Act 1974. This means that your employer has a duty to ensure that, so far as reasonably practical, they ensure the health and safety of their employees at work. In order to comply with their duty, employers should be taking the following steps:
- Carrying out suitable risk assessments to identify risks. These should also look at different groups of employees (for example, individuals with a disability or pregnant workers) who may need reasonable adjustments and/or additional health and safety measures to be implemented;
- Implementing safety measures to minimise those risks;
- Providing adequate ventilation;
- Clean the workplace more often;
- Providing hand sanitiser and encouraging all employees to use it regularly;
- If employees attend the workplace with COVID-19 symptoms, they should be sent home.
Should my employer require all employees to socially distance and/or wear masks in the office?
From 19 July 2021 the legal requirements in relation to social distancing were removed. However, despite there now being no legal requirement to remain socially distanced, employers should still ensure they are complying with their health and safety duties. They should therefore carry out a risk assessment to determine what measures they will use to create a safe working environment.
Similarly, whilst there is no longer a strict legal requirement relating to face masks, public health guidance does recommend face coverings in crowded and enclosed spaces, with the aim of reducing the risk of transmission. This could include places such as corridors, lifts, stairwells etc. Employers may therefore decide to keep some existing measures in place to make their employees feel more comfortable with returning to the office and this could be raised by employees when inviting employers to consider their concerns.
Can my employer make it a requirement that I am vaccinated?
Vaccinations for care home workers are set to become compulsory from 11 November 2021. For everyone else, vaccination is currently voluntary, although the mandatory requirement could be extended to further sectors in the future.
The concept of employers mandating vaccines is novel and untested. If an employee decides to refuse the vaccine, and an employer then makes the decision to dismiss or sanction them as a result, then the employee may be able to make a claim for unfair dismissal (providing the employee has over two years’ service) and/or discrimination if they have a protected characteristic. If an employer decides to mandate vaccines then they would need a strong business and health and safety related argument in order to justify such action.
With that said, employers can encourage their employees to get vaccinated, and this has been encouraged by Public Health England who published guidance to support employers on the vaccination of their workforce.
Should my employer be implementing measures for employees who are at higher risk or clinically extremely vulnerable?
Government guidance protecting individuals categorised as clinically extremely vulnerable and on shielding has changed throughout the COVID-19 pandemic.
The government are no longer advising those who are classed as clinically extremely vulnerable to shield and instead has issued further guidance on protecting those individuals. The guidance provides that extra consideration should be given to individuals with mental and physical health conditions. Employers should therefore be considering this as part of their risk assessment and discussing it with their employees to ensure that their individual needs are supported and any additional safety measure are implemented.
If employees are suffering from mental or physical health conditions that have significant and long term adverse effects on their abilities to carry out normal day to day activities, then they may be considered to be disabled under the Equality Act 2010 and their employer will therefore have a duty to make reasonable adjustments.
I have symptoms of long COVID, what should be employer be doing in relation to this?
Long COVID has been described as covering a broad range of symptoms, including fatigue (the most common symptom), muscle pain and difficulty concentrating. We have covered this in more detail here.
If employees are suffering from long COVID symptoms, then the usual rules for sickness absence and sick pay apply.
Employers should be mindful that such symptoms can come and go and should communicate and agree with employees about how and when to make contact during their absence, ensure work is covered whilst they are off and discuss how they can support employees to return to work.
If an employee is struggling to do their job, then their employer should be considering the following:
- Obtaining an occupational health assessment;
- Making changes to the workplace, which may include different working hours;
- A phased return to work.
If an employee is struggling to do their job or is having to take a lot of absence, then their employer should be discussing with them whether there is anything they can do to help, and this may require obtaining a further occupational health assessment to determine what, if any, further support may be needed.
If an employee is unable to do their job, then their employer may need to consider commencing a capability procedure, although they will be required to carry out a full and fair process to avoid potential claims for unfair dismissal (providing the employee has over two years’ service) and/or discrimination if they have a protected characteristic.
Although long COVID is a new condition, there is a strong possibility that it may amount to a disability under the Equality Act 2010 (see above). If this is the case, then employers owe their employees further obligations, such as the duty to consider reasonable adjustments, and should not discriminate against them. If an employee finds themselves in this situation we would strongly recommend that they obtain legal advice.