As some countries start to ease lockdown restrictions and workplaces begin, slowly, to reopen,
below are the top steps for global employers to address now in their return to work plans.
These issues are not based on the laws of any one jurisdiction but rather are designed to provide
a global employer with themes to consider, understanding that what may be suitable for each
employer will vary greatly depending on the employer’s unique circumstances. Employers are
encouraged to continually monitor local government and health agency guidance and contact
their local DLA Piper counsel to discuss obligations and best practices specific to their location,
industry, size, works council/labor union involvement, and existing policies. Employers are also
encouraged to remain nimble, recognizing that the public health threat and employers’ legal
considerations may change as the situation evolves.
For support globally, or in any of the countries in which you operate, contact your DLA Piper
relationship attorney or email us at Coronavirus Employment.
When and how to re-open workplaces
At some point in the coming weeks as restrictions around the world are relaxed, businesses will be able to open up their workplaces again and welcome employees back. However, the decision as to when and how to re-open workplaces is unlikely to be simple.
The return to work process will happen gradually. In some countries, we expect that certain sectors, types of workplace or geographical areas will be permitted to return before others. Even once the restrictions are eased, companies are likely to take a phased approach so that they have time to comply with social distancing and health and safety obligations, and reassure employees that it’s safe to return.
In countries that are already opening up, some of the phased return options that employers are considering include:
- Office/team rotation: Employees are split into two or more groups, the groups attend work or work from home on a rotating basis.
- Staggered start and finish times, to minimise congestion on public transport and increase space in the workplace.
- Staggered returns to work, with employees being brought back in phases, with those who are unable to work from home coming back first.
- Geographical based openings, with workplaces opening in low risk areas first, followed by sites in more densely populated areas where employees are more reliant on public transport.
Where the company opts for a phased return to the workplace, it will need to ensure that the way in which employees are selected to return the workplace does not raise any discrimination issues.
The decision as to when to open the workplace will depend on government guidance and operational needs. Before workplaces are re-opened, companies will need to ensure that they have met their health and safety obligations and are operationally ready for a return to the office. Among other things, that could involve: the return and sterilization of any equipment loaned to employees during the lockdown, re-configuring the workplace to meet social distance obligations, carrying out health and safety risk assessments, agreeing an approach to testing/health checking, communicating the new protocols to employees, etc.
The return to work plan should also address whether, and if so, how much notice the employer is required to give to employees of the return to the workplace, and whether the employer is required to consult with employee representative bodies about the return to work plan. The requirements are likely to differ depending on whether the returning employees have been working at home, laid off/furloughed or are on some other form of leave.
In France, for instance, prior consultation of the CSE (social and economic committee) on an “action plan” and measures put in place to protect employees’ health and safety is required. A governmental decree is expected to be issued shortly to define the timing and duration of such consultation. No prior notice is required to be given to employees, but is recommended. In Spain, the company must give sufficient advance notice if employees are currently working remotely. For employees whose employment has been temporarily suspended, the company must comply with the terms agreed.
Where working from home has proved successful, some companies may decide to stick with the status quo and continue to allow home working for the foreseeable future. Where that is an option, the working from home policy and approach should be checked to ensure that it remains fit for purpose for a longer – possibly – permanent working from home period. This may also be required or recommended by the authorities in areas heavily reliant on public transport, e.g. Spain’s government has announced that only 30% of Madrid’s public transport network will be available in the first few months after lockdown restrictions have ended so employers will have to allow staff to continue remote working where possible (unless they are able to travel by other means to the office). Some businesses may even consider shutting down workplaces completely in an effort, among other things, to save on real estate costs.
Employers need to be prepared to respond quickly to any change in government guidance and plan a flexible return to work solution for each workplace.
Infection prevention measures in place in the workplace
In addition to implementing social distancing measures in the workplace (see below), employers must ensure that they have made the workplace a safe place for employees to return to and have protocols in place to ensure infection prevention going forwards. The requirements will differ in each country, depending on local health and safety regulation and guidance, and even within countries there may be different standards for different sectors. Subject to the local/sector requirements which should be followed, the sorts of things that businesses may need to consider include, among other things:
- Working with the health and safety team to conduct (and document) risk assessments.
- Working with building management to improve air circulation, ventilation, humidity levels, etc.
- Ensuring proper procedures for handwashing/ hand sanitization including no touch dispensers and disposable towels.
- Implementing deep cleaning and sanitizing procedures.
- Introducing protocols for handling and cleaning surfaces that are used frequently, e.g. elevator buttons, door handles, handrails, etc.
- Replacing door handles with foot-pulls to create hands-free access.
- Identifying how restaurant/canteen/other shared facilities can operate safely.
- Ensuring proper protocols for use of shared equipment or spaces or ensuring that equipment is assigned and used by only one employee.
- Installing physical barriers where appropriate such as plastic sneeze guards to separate employees from customers.
- Requiring anyone attending the premises to complete health questionnaire in advance (subject to privacy issues, see below).
- Testing and temperature checking (subject to privacy issues, see below).
- Producing and communicating protocols for when someone is found to be infected with the virus in the workplace.
- Consulting with employee representatives/health and safety committee on safety issues.
- Updating contractor and visitor protocols to minimize the risk from others attending the workplace.
- Identifying the extent to which employees are responsible for co-operating with the employer and taking steps to protect their own health and safety.
- Nominating a person in the workplace responsible for monitoring and ensuring compliance with COVID-19 rules and regulations.
Some countries have already released guidance e.g. the Department of Employment and Labour in South Africa has issued a COVID-19 Direction on Health and Safety in the Workplace, the German Ministry of Labor has released occupational safety guidelines that cover workstation design, ventilation, social distancing measures and the use of masks and the UK Government has guidance on social distancing in the workplace for different types of employers in different sectors.
Provision of masks and protective equipment
Employers will need to check local rules and national/sector wide guidance on the use and provision of masks and other protective equipment (gloves, goggles, etc.) in the workplace. In some countries, the wearing of masks in the workplace will be mandatory or recommended (e.g. as required in Poland and Morocco, in certain situations), and employers may be obliged or expected to provide (or pay for) masks for employees and others attending the premises. If that is the case, employers should explore options now for procuring the appropriate equipment (e.g. are medical grade masks required?). Where the provision of protective equipment is not required (and even where it is), employers should bear in mind the potential for reputational risk where more equipment than necessary is procured in those countries where shortages for healthcare workers persist.
Protective equipment requirements will depend of course on the nature of the role and relative risk of exposure, and are likely to continue to evolve depending on updated risk assessments and increasing information on equipment effectiveness.
Social distancing in the workplace
Ensuring that the workplace allows for social distancing between employees, and anyone else entering the premises, is probably the most important measure for employers to consider now. Steps that employers may need to consider to ensure social distancing in the workplace include but are not limited to:
- Changing the workspace configuration where possible.
- Re-assigning employees to different offices/workspaces to enable employees to spread out.
- Permitting staggered working/continued remote working.
- Limiting the number of people who can be in a confined space at any one time, e.g. in meeting rooms.
- Reducing the number of in-person meetings.
- Prohibiting large gatherings.
- Modifying walkways so these are one-way only.
- Removing furniture in meeting rooms/communal areas to create more space.
- Limiting access to elevators, escalators and stairways and demarcating standing spots or distancing requirements.
- Limiting access to other small spaces e.g. bathrooms.
- Changing the layout of common areas/canteens so tables and chairs are adequately spaced.
- Increasing service hours in canteens.
- Closing or amending access to on-site gyms and locker rooms.
- Reviewing ventilation/air conditioning risks.
- Re-organizing working time/breaks to stagger rest breaks.
- Implementing a protocol for visitors to the premises including limiting who can enter.
- Reviewing entry and exit protocols to avoid congestion in common areas.
- Implementing and communicating a social distancing policy and identifying what to do in the event of non-compliance.
Employers should of course comply with social distancing guidance issue by the government, labor authority, health and safety body and/ or industry body as appropriate (see some examples of this below). In some countries, social distancing rules will need to be outlined in a company policy.
Employees who are vulnerable or unable or unprepared to return to the workplace
There are likely to be many employees who are unable or unprepared to return to the workplace for the foreseeable future. Employers will need to develop consistent, non-discriminatory and appropriate responses to the different categories of employees, likely to include:
- At-risk employees and those with health conditions who have been told by the government/health agency to shield/stay or home for a longer period.
- Working parents whose children remain at home due to school or childcare closures.
- Employees who live with or care for vulnerable people who cannot put themselves at risk.
- Employees who are uncomfortable to return to work for other reasons, e.g. they do not feel comfortable taking public transport.
- Employees who cannot return to work due to unavailability of public transport.
- Employees who have enjoyed working from home and would prefer to remain at home.
The appropriate response will depend on the reasons for the refusal to return to the office, and whether the employees can work from home. Employers should ensure that whatever general approach they adopt, this is broadly applied to ensure fairness of treatment, while acknowledging that exceptions will need to be made depending on individual circumstances. For some employees, depending on the reason for their refusal to attend the workplace (e.g. due to an anxiety condition), the employer may also be under a positive duty to make adjustments or accommodations due to a disability.
Health checking including temperature, virus and antibody testing
Many employers are exploring health checks including temperature checking and virus testing as a way of mitigating infection risk and meeting their health and safety obligations on the return to the workplace. While not yet widely available yet, antibody testing is also being considered, although current concerns about the reliability of such tests and whether those who have recovered from COVID-19 do have immunity, will have to be overcome before these are rolled out. However, these approaches raise significant privacy issues and will be highly restricted in some countries.
Temperature screening is now required in workplaces in some countries, including China, Singapore and Israel, and other governments are likely to introduce similar measures in time. Until specific guidance has been issued, existing employment and privacy laws will need to be
interpreted. In many countries, screening under current principles is possible (including Hong Kong, Australia, South Africa), but even here it is permitted, notice or consent may be required. In the EU, the position is much more restrictive. Some countries require a medical professional to undertake the checks (rather than the employer), and generally blanket screening is not allowed, as it is beyond what is considered necessary to meet the employer’s obligations. Even where screening is permitted, it will require employees to be willing to co-operate and employers to have a workable solution under local employment law for dealing with employees who refuse. Consultation with employee representatives (works councils/ unions) may also be required before the screening program is put in place. Directing employees to regularly screen themselves before presenting for work and instructing them not to attend work if they have symptoms avoids the privacy issues of screening by employers.
Virus testing is a much more intrusive method of risk mitigation, and many practical issues need to be considered before testing is implemented: In many countries the tests are only available for those with symptoms or who have had contact with an infected person (with priority for frontline workers) and the diagnostic test will only show whether the individual currently has the virus, so would have to be repeated regularly or only used where symptoms were shown. Currently in China, for instance, virus testing is only being deployed for those in high risk roles (e.g. healthcare workers) or living in high risk areas, but not more widely.
In terms of the legal implications, across Asia, virus testing is generally permissible; but consent is likely to be required and in some countries, tests can only be conducted at the request of an authorized health authority through the public medical system. Across the EU, testing is generally only permissible if the tests are for very limited permissible purposes (e.g., the nature of the job necessitates it), are voluntary with freely given consent (rarely possible in practice in an employment context), and are administered by a medical professional. It is generally impermissible to mandate such tests on all employees. Diagnostic COVID-19 tests generally cause less concern than antibody tests, which many EU countries deem impermissible. As with temperature screening, we anticipate further guidance on this in time as governments develop back to work guidelines.
Given the significant privacy and logistical challenges with temperature checking and testing, many employers have rolled out health questionnaires as an alternative (or additional) approach. This would require employees (and visitors) to complete an online form before entering the workplace, confirming whether they have a temperature or any other symptoms, have been exposed to any individuals who might have COVID-19 or have travelled to any high risk areas. As health questionnaires are less intrusive than temperature or COVID-19 tests, if carefully drafted, they are more likely to be permissible in most jurisdictions subject to appropriate safeguards. They may also be a viable alternative to testing in countries such as Israel where testing resources (e.g., forehead and no-contact thermometers, COVID-19 test kits and certain types of PPE) are scarce.
Whatever health checking is carried out, note that health data is considered highly sensitive information in most jurisdictions. It should be implemented with at least some degree of supervision by health professionals and transparency about the collection and use of the information is essential. If it is collected, an initial consideration is whether the data needs to be recorded or retained in the first place (e.g., normal level temperature reads), and if it is recorded or retained, then the local law legal justification for doing so should be clear and recorded, it should be stored securely, made accessible only to persons having demonstrated the need for it, used only for the health and safety management relating to this current emergency situation, made anonymous if disclosure is required (with the caveat that anonymization may not be possible where, for example, an employee tests positive for COVID-19 or is excluded from the workplace due to a high temperature or other symptoms of COVID-19, as the data would have no value otherwise), and the information should be held only for a reasonable period of time (and destroyed afterward). If temperature/health checking and/or or testing is carried out, employers must be careful to take a consistent approach to avoid the risk of discrimination claims in circumstances where some employees are selected to undergo the checks/tests when others are not.
Tracing apps are being developed by many countries to help identify people at risk of being infected as a result of being in contact with a person who has tested positive for the virus. Germany, Australia, Italy and Denmark have all announced plans to push out apps in the next two or three weeks. The authorities in many cities in China have already launched apps to track the health status of individuals. In Singapore, currently in the midst of circuit breaker lockdown measures, those workplaces that are permitted to open are encouraged to use ‘SafeEntry’, a digital check-in app that logs workers’ entry into and exit from the workplace, to ensure contact tracing can be done expeditiously.
The use of tracing technology raises significant privacy issues, particularly if employers plan to deploy these in the workplace. The European Data Protection Board has published guidance for countries developing apps, encouraging them to balance the requirement for data collection with human rights obligations, and acknowledging that while there are some limited EU privacy law exemptions for data processing due to the public health crisis, this is not a free pass to ignore existing requirements.
While an employer may have credible grounds on the basis of health and safety to argue that it reasonably believes an app tracking device is a necessary measure to combat the threat of infectious disease in the workplace, tracking can be highly intrusive and care must be taken to meet various local requirements before implementing. For example, absent any specific national legislation, GDPR requirements must be satisfied in the EU, the measure must be necessary to protect the employer’s legitimate interests and proportionate to that purpose. A balancing test to assess the employer’s needs against the impact on individual freedoms and rights will be needed. It will require a risk and privacy impact assessment and employees would have a right to object. Similarly, outside the EU, state specific surveillance laws will apply in many jurisdictions (e.g., Australia) and may trigger the need to obtain employee consent for the use of apps in the workplace.
While apps are being developed to manage infection risk, another serious concern is the potential for misuse, particularly in the workplace if apps could allow the employer to track a worker’s every move. Employers deploying such apps will therefore need to consider – and significantly limit – how data will be collected and used and for how long, whether the tracing can be turned off and restricted to the workplace only and how to minimise the risk of misuse so that the data is not used for other workplace management purposes (e.g. time keeping or absence management). Full transparency with employees will be required. Other practical issues will need to be considered before deployment, including employee consent where relevant, obligations to inform and consult employees (individually or collectively) about the use of such apps and managing employees who refuse to use the tracing technology.
Business travel and commute to the workplace
It is likely that much business travel will be limited for some time to come, not least because of the current restrictions on domestic and overseas travel. Even when travel becomes possible, employers are likely to be under pressure to justify business travel for some time to come, and consider whether alternatives to meeting in person could be used instead in particular where the use of online meetings has become the new norm.
Where travel is required, the business will need to ensure that social distancing can be maintained during the trip and that the employee has sufficient protective equipment (based on local and host country obligations). Any local quarantine rules in the host city/country need to be taken into account, as well as the potential for longer wait times for immigration, health questionnaires and testing during travel. Travel insurance policies should be checked to ensure that these continue to provide sufficient coverage and travel policies and procedures reviewed to address infection related risks such as the employee being stranded overseas should a lockdown happen during a business trip.
Employers should also consider if they need to take any steps in relation to risks that may arise as a result of the way in which employees commute to the workplace. For example, some employers may want to ask employees to avoid public transport for the time being. Whether this will be a reasonable request is likely to depend on how the employer might support this type of instruction, including in terms of cost and alternative transport provision.
Review policies and contracts
Some company policies and procedures may warrant review due to the temporary work stoppage/period of working at home. For instance:
- Annual leave: Employers will need to consider practical issues, such as whether employees need to be reminded to take annual leave in good time before the end of the leave year and if that requires any additional communications to employees. In some jurisdictions, there will be limitations on how much control employers can exercise over annual leave (for example, in terms of directing when it can be taken, limiting any carryover and/or requiring forfeiture of unused leave). Employers must also consider if any new rules mean that their annual leave policy or approach needs to be updated. For instance, the UK has extended the period during which unused leave can be carried where it was not reasonably practicable for a worker to take leave due to COVID-19, in some countries such as France, employers are permitted to instruct employees to take a certain number of leave, Brazil now permits employers to put employees on leave on 48 hours as opposed to 30 days’ notice, and some countries have granted new leaves which will need to be reflected in policies, e.g., new leave rights in France to address childcare issues.
- Sick leave policy: Employers should also check if their sick leave/absence from work policies need to be updated due to a change in local rules or practice e.g., can sick leave be taken by individuals on quarantine even without producing a doctor’s note, has the amount of sick pay or have the eligibility rules changed, what entitlement to pay do employees have who are shielding and unable to return to work, etc.?
- Unpaid leave policy: Unpaid leave policies should also be checked to ensure that they address the current situation, for instance, will the employer permit unpaid “emergency” leave to address issues arising from the epidemic?
- Flexible working policy: Flexible work policies may need to be adapted, at least in the short-term, to accommodate requests from employees impacted by the crisis who may need to work differently due to caring responsibilities or other impacts. This could mean moving away from any previous eligibility criteria and opening up flexible working to the wider workforce. Employers should also consider whether this will require amendments to employment agreements.
- Home working policy: If not already reviewed, homeworking policies should now be looked at to check that they address the current situation and the potential for on-going working at home for a period of time and/or rotation between home working and workplace working. Among other things, provisions relating to IT and data security, work equipment and health and safety should now be reviewed.
- Health and safety policy: It is vital that all workplace health and safety policies are reviewed to ensure that they address any government or health agency requirements, reflect the new increased responsibilities on employers so that managers and employees are aware of their rights and obligations.
- Performance management/disciplinary procedures: Employers who have had to put performance management and disciplinary procedures on hold during the lockdown may need to consider how to revive these and manage the processes going forward.
- Contracts of employment: Some businesses may wish to review their contracts of employment to ensure that these are fit for purpose should a similar emergency arise again, e.g. reviewing layoff/force majeure clauses. Changing contracts of employment for existing employees is an involved process and will generally require consent and, in some countries, consultation, but changes can be introduced easily for new starters.
- Emergency action plans: Employers will need to consider their existing emergency action plans and policies to reassure themselves that they suitable for issues arising in a pandemic. In time, governments may require specific workplaces policies to be in place to deal with COVID-19 or a similar crisis emerging in the future. Employers should continue to monitor developments in this respect.
In some countries, policy changes will require consultation with employees and/or employee (or health and safety) representatives.
The impact of the pandemic, lockdown and economic uncertainty has taken a great toll on people’s mental health the world over. Many employees are likely to be experiencing more anxiety than usual about their health as well as their jobs. Accordingly, employees may be seeking additional support for their mental wellbeing as they return to the workplace. This could involve offering employee assistance programs or other counselling services or that can be accessed online, access to mindfulness or resilience courses, training managers on spotting signs of mental ill health, encouraging empathy and understanding between colleagues, encouraging employees to take rest and time out when possible, regular communication with the workforce about the resources available and about the situation more generally.
Prepare for further lockdowns
Given the uncertainty with the evolution of the pandemic, it is entirely possible that after lockdown restrictions are eased, restrictions could be re-imposed with little or no notice, to deal with further outbreaks or spikes in infections. For example, Singapore recently introduced new restrictions to act as a circuit breaker to break the increased spread of the infection. Businesses need to be prepared for further lockdowns at potentially short notice and should review business continuity plans and have contingencies in place to address that risk. As the situation continues to evolve, employers should continue to monitor developments, review public health and government guidance and communicate with employees as much as possible.
Back to work rules and guidance
A number of governments, labor ministries, health and safety bodies and/or industry bodies have produced or will be producing return to work guides for employers. Keep up to date on guidance at our COVID-19 Return to Work Rules and Guidance for Employers Update. For updates on emergency measures, lockdowns and other aspects of the crisis, please review our daily COVID-19 Update for Employers.