Scottish First Minister Imposes New Legal Obligations on Scottish Employers

Speaking in the Scottish Parliament this afternoon, 14 December 2021, the First Minister confirmed various steps being taken by the devolved Scottish Administration to mitigate the risk posed by the Omicron variant of COVID-19, including new legal obligations for Scottish employers.

The accelerated roll out of the COVID-19 Booster Vaccine was the primary message and guidance on rapid flow testing before visiting family and friends, the need to self-isolate regardless of vaccine status and reducing household contacts and external socialising, but in addition to this advisory guidance the FM also confirmed new legal obligations will be imposed on all Scottish Employers.

New Legal Obligations for Scottish Employers

Whereas the guidance notified to the public perviously had been strictly advisory, today’s announcement confirmed that two new legal obligations were being imposed on Scottish Employers, namely:

Employers will now have a legal obligation to introduce home working, wherever possible to reduce mixing in workplaces.
Employers will now have a legal obligation to implement protective measures that are reasonable and practicable to protect their workers from the risks posed by the transmission of the OMICRON variant of COVID-19.

Today’s announcement failed to confirm when these new legal obligations will come into force and we will provide further details once the Scottish Administration clarifies its position.

Considerations for Employers Choosing to Keep Workplaces Open

Employers choosing to remain open must consider carefully their obligations and should continue to follow any sector specific guidance and where there is no sector specific guidance, they should ensure that as a minimum they take the following steps:

Continue to assess the risks to yourself, your employees, your suppliers and your customers. If you employ 5 or more employees, this must be recorded in writing and if you employ 50 or more employees, you must publish your risk assessment.
Ensure you have in place all required infection and control measures, which could include.
Cleaning more often. Increasing how often surfaces are cleaned, especially those that are being touched a lot. Asking staff to use hand sanitiser and wash their hands frequently.
Asking customers/visitors to the workplace to wear face coverings.
Making sure everyone is social distancing. Make it easy for everyone to do so by putting up signs or introducing a one-way system that staff/visitors can follow.
Increasing ventilation by keeping doors and windows open where possible and running ventilation systems at all times.
Turning people with coronavirus symptoms away. If a staff member (or someone in their household) or a customer/visitor to the office has a persistent cough, a high temperature or has lost their sense of taste or smell, they should be self-isolating.

Employers should be prepared to be flexible given the likelihood that the OMICRON variant will remain a risk for the foreseeable future and a resurgence in infections may result in further lockdown restrictions. It is important also to remember that staff may have legitimate reasons for not wanting to remain at work, such as:

being or living with a “clinically extremely vulnerable’ or ‘clinically vulnerable’ person.
having childcare issues if children are sent home from school or nurseries or being unable to rely on normal childcare arrangements.
feeling extremely anxious about the risk posed by COVID-19 and fearful about remaining in the office.
expressing concerns relating to health & safety and what they perceive to be the employer’s failure to follow government guidance and/or implement appropriate measures and controls.

Employers will need to carefully consider feedback from staff, be prepared to be flexible and act reasonably when responding to staff feedback so as to avoid the risk of possible claims at the Employment Tribunal.

Support for Employers

The COVID-19 lockdown restrictions continue to present numerous and complex challenges for Employers.

If you are an Employer and require advice and support on any employment matters, COVID related or otherwise, call us now on 0800 612 4772 or Contact us via our website and we will set out clear guidance to assist you to comply with your legal obligations.

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