All Employers have a duty of care to their employees but the Coronavirus outbreak has created a variety of challenges for Employers and a degree of uncertainty about how far that duty of care extends. This article focuses on Employer’s Duty of Care.
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Employer’s duty of care
What should an employer do where an employee who is at work starts displaying symptoms?
The government guidance from Public Health England and BEIS and the Acas guidance (see Government and Acas guidance), advise that if the employee has not been to one of the high-risk specified areas in the last 14 days, then normal practice should continue. However, if the employee has travelled to one of the affected countries in the last 14 days, they should be removed to an area which is at least two metres away from other people. If possible, this should be a room or area where they can be isolated behind a closed door, such as a staff office. A window should be opened, if possible, for ventilation.
The guidance advises that the affected employee should call NHS 111 from their mobile, or 999 should be called if it is an emergency (if the employee is seriously ill or injured or their life is at risk) and explain which country they have returned from in the last 14 days and outline their current symptoms.
While the employee waits for advice from NHS 111 or an ambulance to arrive, they should remain at least two metres away from other people. They should avoid touching people, surfaces and objects and be advised to cover their mouth and nose with a disposable tissue when they cough or sneeze and put the tissue in a bag or pocket then throw the tissue in the bin. If they do not have any tissues available, they should cough and sneeze into the crook of their elbow.
If the employee needs to go to the bathroom while waiting for medical assistance, they should use a separate bathroom if available.
Both the government guidance and the Acas guidance are updated frequently and employers would be advised to check the online versions for the latest advice. The Welsh Government and Health Protection Scotland have also issued guidance on this issue.
At what point should an employer close the workplace?
The Acas guidance advises that if someone with COVID-19 comes into a workplace, the workplace does not necessarily have to close.
In England, the local Public Health England health protection team (HPT) will get in contact with the employer to:
- Discuss the case.
- Identify people who have been in contact with the affected person.
- Carry out a risk assessment.
- Advise on any actions or precautions to take.
A risk assessment of each setting will be undertaken by the HPT with the lead responsible person. Advice on the management of staff and members of the public will be based on this assessment.
The HPT will also be in contact with the case directly to advise on isolation and identifying other contacts and will be in touch with any contacts of the case to provide them with appropriate advice.
Advice on cleaning of communal areas such as offices or toilets will also be given by the HPT.
The process may be slightly different in Scotland and Wales (see Government guidance below for links to the relevant guidance).
Can employers lawfully conduct temperature checks on employees, workers or visitors?
An employer cannot require an employee, worker or visitor to their premises to undergo a medical examination without their consent. This would include taking temperatures. To proceed without consent could potentially be a repudiatory breach of contract in respect of employees, entitling them to claim constructive dismissal, and assault in relation to any individual.
However, on a practical level, if the nature of the employer’s business is such that it considers it would need to temporarily close or send employees and workers home during a pandemic unless it undertook such health checks, consent may not be an issue in the majority of cases. On a personal level, employees and workers may be reassured that the employer is taking steps to protect their health in the workplace, as long as testing is carried out on all staff and visitors without exceptions, and appropriate hygiene safeguards are in place.
Obtaining health information about an individual is special category personal data and an employer (or data controller) can only process such data on certain grounds under the GDPR.
One of the permitted grounds for processing special category data is for health purposes. As it says in these sections, the health exemption enables occupational health professionals to process data relating to health where processing is necessary for the purposes of preventative or occupational medicine, for the assessment of the working capacity of the employee, medical diagnosis or management and treatment. This exception will only apply to occupational health professionals who are subject to confidentiality obligations, such as those issued by the General Medical Council regulating the conduct of medical practitioners.
This may mean that provided an employer uses an occupational health professional to conduct the temperature checks and obtains explicit consent, it may be possible to conduct these temperature checks lawfully. However, at present we are not aware of any authority on this point. A generic form of consent in employment contracts relating to health checks is unlikely to be sufficient for data protection purposes.
Health and safety
An employer has health and safety obligations towards its employees. It may be arguable that carrying out temperature checks may be part of a series of measures which assists employers to protect the health and safety of their employees in a pandemic. However, in relation to the COVID-19 pandemic, taking temperatures is not a measure currently recommended by the government or the World Health Organisation. An employer should first focus on ensuring that the advice recommended by those sources is followed. The guidance is however being continually updated so it is necessary to regularly check for the latest developments.
Potential discrimination issues
If an employer decides to carry out any form of medical testing on employees, workers or visitors during a pandemic, it should ensure that it is applied consistently to all. Only testing certain groups who are perceived to be at a higher risk of having contracted a virus could potentially lead to discrimination claims.
The COVID-19 pandemic is continually changing and the government advice for employers is being updated as the situation develops. Employers should keep track of the guidance for employers from the following sources:
- Health Protection Scotland: COVID-19: Information and Guidance for Non-Healthcare Settings (applicable in Scotland).
- Public Health England and BEIS: COVID-19: guidance for employees, employers and businesses (applicable in England).
- Welsh Government: Coronavirus (COVID-19): employers and businesses guidance (applicable in Wales).
- WHO guidance: Getting your workplace ready for COVID-19 (applicable globally).
For information on the circumstances in which individuals should self-isolate see the following sources:
- Health Protection Scotland: Coronavirus (COVID-19)and NHS Inform: Coronavirus (COVID-19) (applicable in Scotland)
- Public Health England: COVID-19: stay at home guidance (applicable in England)
- Public Health Wales: Novel Coronavirus (COVID-19) – Self-isolation advice (applicable in Wales)