On 19 July 2021, consistent with previous announcements in early July the 'full-reopening' of the English economy took place. The devolved governments of Northern Ireland, Scotland and Wales have also announced 're-opening timetables' albeit effective at later dates and with different conditions attached.

Re-opening and the lifting of restrictions, intended to control the spread of Coronavirus, is no longer described as 'irreversible' by the UK Government and it is possible that continuing appraisal of the infection and hospitalization rates may lead to restrictions being re-imposed even as other conditions are eased. For example:

• from 16 August 2021 in England individuals who have been double vaccinated will no longer be required to self-isolate if they are identified as a close contact of a person who has Covid-19 unless they develop symptoms themselves;
   
• but, on 19 July 2021 plans to make vaccination a legal condition of entry to 'higher-risk settings' such as night clubs were announced.

In England, while the 'work from home if you can' message is being given less emphasis as  the Government seeks to encourage the re-opening of city centre offices and the consequential re-invigoration of those shops and retail services dependent on commuters, the expectation is that any return is likely to be phased. The English guidance explicitly states, "During this period of high prevalence, the government expects and recommends a gradual return over summer".

What should an employer do if it intends to implement a return to the office?

• Check the guidance: At no point has the entire UK workforce been working from home or on furlough (i.e., paid not to work). During the pandemic, guidance (last updated on 15 July 2021)  has been issued to advise employers of the steps they should consider taking to establish and maintain 'Covid Secure' workplaces and practices (see 'Working Safely during coronavirus (Covid-19)'¹ Working safely during coronavirus (COVID-19) - Guidance - GOV.UK Employers should continue to review the guidance on a regular basis to determine whether any changes affect how they operate their premises and operations.

• Communicate the plan: Where an employer is contemplating requiring employees to return to office-based working, it should, as well as ensuring that it has a Covid Secure workspace, consider when and how it will communicate planned return dates. For example, it may wish to implement a 'soft return' with employees being encouraged to return initially on a flexible basis before an agreed 'all back to the office' date.

• Physical space: As with any previous Covid Secure risk analysis, in finalising any return to work plan employers  must undertake an appropriate risk assessment, including considering how many people can 'safely be accommodated on site' and implement appropriate policies and practices on social distancing, mask wearing, use of PPE (if appropriate), ventilation and cleaning.

• Staggered working hours: Consideration should also be given to the possibility of staggering working hours e.g., to avoid busier commuting times where employees typically use public transport.

• Remote working health and safety: If employees are to work or continue to work remotely for some or all of their work-time, consideration needs to be given to the ongoing provision of working equipment at home; health and safety assessments of the home working arrangements; the extent to which employees will be reimbursed for office staples which they require and whether there will be any contribution, for example, to the employee's broadband, lighting, heating and phone costs. Employers should also consider how they will address employee well-being as well as their integration with co-workers.

• Employee consultation: Whatever decision an employer takes about a return to work premises, it should prepare and consult with employee representatives in good time about its new or updated Covid-19 risk assessment and provide details of the steps in place or proposed to keep the workplace Covid Secure to its employees.

What will the return to the workplace look like?

As employers plan a return to the office, the typical work pattern will change for many employees who are or were office based. How far this changes will depend on the employer and the business; some employers have already announced that 'flexible or hybrid working' will be their way forward with employees working from home perhaps 2 to 3 days a week, or in some cases, permanently working on a remote basis, while other employers have indicated they intend to have all employees returning to their office workplace on a 'full-time' basis.

What changes to employment contracts should an employer make if it intends to move permanently to hybrid or remote working?

Under the Employment Rights Act 1996, an employee's statement of employment particulars (contract) must contain 'either the place of work or, where the worker is required or permitted to work at various places, an indication of that and of the address of the employer.'

During the pandemic and while the 'work from home if you can' directive was in place, employers and employees have generally relied on ad hoc variations to employment agreements recorded by way of email exchange or letter.

Where, before the pandemic, employees worked from their employer's office, a permanent change to hybrid or flexible remote working will likely be a change to their terms and conditions of employment which must be included in their individual contract. The employee's agreement must be sought to any proposed change.  If an employee objects to the change in whole or in part, the employer should be open to considering requests from employees for alternative arrangements (see 'What should we do if an employee refuses to return full-time to the office whether on a  full-time or hybrid basis?' below).

What are the data privacy and confidentiality implications of permanent remote or hybrid working?

To the extent not already carried out in the context of the pandemic and the 'work from home if you can' directive, employers should review and update their data protection polices and carry out a Data Privacy Impact Assessment on the data protection implications of employees working from home. Any home working policy should:

• clarify what steps the employee must take to keep data, laptops and other office property secure;

• clarify who may access or use employer-owned IT equipment;
  e.g., if only the employee may use a work laptop or if the employee may only use a company laptop for work purposes and not for any private purpose this should be explicitly stated.

• make clear if the employee may only work from the office or their home location;
  e.g., may the equipment be used on holiday

• be clear if there are any restrictions on where an employee may choose to work remotely;

• clarify when the employee may be required or expected to attend the employer’s premises;

• set out the requirements for the safe destruction of confidential information.
  e.g. requiring employees to bring this information back to the office for destruction

What if an employee doesn't want to return to the office whether on a full-time or hybrid basis?

It is possible that even if an employer plans a return to the employer's workplace for all employees that some requests to work remotely for some or all of the time may be made to which the employer must give appropriate consideration:

• If an employee refuses or is reluctant to return to the workplace, before instituting any disciplinary process which may ultimately lead to dismissal, the employer should engage with the employee concerned to establish whether:

• there are specific reasons which make it problematic for that employee to return attend work premises
  e.g., clinical vulnerability to infection
• whether there are alternative arrangements or working patterns that are feasible for the job:
  e.g., staggered work times or commuting outside busy times (see above)

It may be that with counselling or possibly some small adjustments e.g. staggered work times or commuting outside busy times the individual is prepared to return to work.

Ultimately if the employee refuses to return, the employer may decide to terminate the employment, however,:

• dismissal for refusing to return to the employer's workplace where the person asserts that it is possible for the job to be performed remotely may lead to a claim of unfair dismissal by the employee;

• employers should bear in mind that any employee who has been employed for 26 weeks or more is entitled to make a request for 'flexible working' which the employer must consider; and,

• it may be more difficult to reasonably reject a request to continue working from home where the employee has successfully worked remotely while the 'work from home if you can' directive was in force.

If an employee refuses or is reluctant to agree new working arrangements the employer may wish to consider termination with an offer of re-engagement on the new working terms it has proposed.  However, employers must be aware that employees dismissed in such circumstances may bring unfair dismissal claims.

What if an employee is clinically vulnerable?

If an employee is clinically vulnerable, the employer should consider whether, if the employee requests this, it is feasible for the employee to carry on working remotely.

If the employee is happy to return to the work-place the employer should be prepared to discuss accommodations which the employee may seek

e.g., staggered work arrival and departure to avoid 'rush hour' on public transport; and/or
e.g., a separate office area rather than being in an open-plan area.

If any change to work arrangements is agreed then, as with a change to a contract to cover new hybrid or remote working arrangements, this should be documented (as an amendment to the employees' contract) including whether the change is for a trial period, a fixed term or permanent.

What are the current obligations for Covid-19 related absence?

Currently, employees must self-isolate at home for 10 days if:

• they contract Covid-19;

• they are notified by the NHS that they have contracted Covid-19;

• they are notified by the NHS that they have been in contact with a person who has Covid-19;

• they live with a person who tests positive for Covid-19 or who has Covid-19 symptoms (unless that person has a negative test).

It may be possible for the employee to work from home during any such self-isolation period (assuming they are not themselves suffering from Covid-19 and unable to work) and the employer should have a policy confirming how it will approach such cases, including whether it will allow employees to work remotely if their job permits this.

Where an employee is required to self-isolate, that person is entitled to be paid Statutory Sick Pay if they cannot work remotely. An employer may choose to pay employees more than their statutory sick pay entitlement.

Employers may wish consider reviewing sickness absence policies to ensure that individuals who are required to self-isolate, by the NHS or by the employer, if it is aware of Covid-19 contact in the workplace and it has an internal policy under which employees who are contacts are required to remain away from work until they have a negative test, are not adversely affected by a policy which, for example, triggers a disciplinary process for sickness absences of a set period or for more than a specified number of days in any year.

What about employees who are contacted by the NHS Test and Trace contact service or who are 'pinged' by the NHS Covid-19 App and told to self-isolate?

The National Health Service (NHS) operates a Test and Trace service in which individuals identified as ‘close contact’ of a person with Covid-19 are identified, called and told to self-isolate. Notification from an NHS Test and Trace call-handler triggers a legal requirement to self-isolate. Individuals have also been encouraged to download the NHS track and trace Covid-19 App² onto their mobile devices. The Covid-19 App notifies an individual if they have been in close proximity with another individual who subsequently reports as displaying COVID symptoms, and advises them to self-isolate.

• Employees and other workers who become aware that they are required to self-isolate, are required by law to notify their employer if they are due to work (other than at their home), and to give the employer the start and end dates of their self-isolation period. Technically the obligation to remain at home and self-isolate if notified via the Covid-19 App is only advisory, however, the UK Government has said it is 'crucial' for individuals who are 'pinged' by the Covid App to self-isolate, and that businesses should help employees to do so.

• It is an offence for an employer to require a person to leave their home to attend work if they have been told to self-isolate or to 'knowingly allow' them to 'attend any place' other than their home 'for any purpose related to their employment'.

• Managers and supervisory staff should be made aware that they must not ask or require staff who are self-isolating to attend their work or any other place in connection with their work.

• Employees should be reminded that they are obliged to notify the employer if they are required to self-isolate.

What if an employee cannot attend work after a holiday because they are required to self-isolate?

Currently England (and each of the devolved governments) apply a 'traffic light' system to other countries. Depending on whether a country (or a transit country) is rated green, amber or red, individuals who are currently permitted to enter the UK are required to take Covid-19 tests before and after travel (more tests are required for amber and red entry) and, depending on the country rating, may:

• have to self-isolate for up to 10 days after entry if arriving from an amber country; or

• for red countries stay in hotel quarantine for up to 10 days after entry.

From 19 July 2021 individuals who have been fully vaccinated with an NHS administered vaccine entering from an amber country (other than France which as at 26 July is subject to tighter restrictions) are not required to self-isolate, although they must still complete a pre-departure Polymerase Chain Reaction (PCR) test and take a PCR test on returning to the UK within two days of arrival.

A number of countries have, since the system was introduced, moved between green and amber, often on a few days' notice, triggering a requirement to self-isolate for employees who are returning from holiday.  Employers should consider what their position will be for employees who are unable to attend work in such circumstances, if they cannot work remotely, and set this out in their holiday policy including whether employees in such circumstances can choose to elect to take further holiday (if they have holiday entitlement remaining) or may be placed on unpaid leave.

There is no entitlement to statutory sick pay if an employee is self-isolating after returning from holiday from a country to which quarantine restrictions apply.

Employers may also wish to make it a condition of agreeing a holiday leave period that the employee discloses where they are planning to travel and remind employees regularly of the employer's policy where an employee is required to self-isolate after a return from holiday.

Is it possible to release an employee from the requirement to self-isolate?

Prompted by rising concern among employers about the number of workers receiving notifications of potential Covid-19 exposure and the possible adverse impact on the ability to keep certain crucial sectors of the economy operating, the UK Government has announced that some easing of the requirement to self-isolate will be introduced.

• Ad hoc: The UK Government stated on 20 July 2021 that some employers would be able to apply before 16 August 2021, on a case by case basis, to a 'relevant government department' for a release from any requirement to self-isolate for employees who are fully vaccinated and do not have Covid-19 symptoms, subject to the employees concerned taking daily Covid-19 tests which remain negative.

• Critical services: On 22 July the government published details of the 'early release' conditions for workers in 'critical services'.  The criteria for release require that the employer believes that 'self-isolation would result in serious disruption to critical services' in which case they must contact the relevant government department for permission to release on a case by case basis NHS Test and Trace in the workplace - GOV.UK. Separate guidance is to be released in respect of frontline health and care staff. A separate scheme has been announced in respect of supermarket depot workers and food manufacturers where up to 10,000 workers are expected to qualify (regardless of vaccination status) to take part in daily testing to reduce the risk of food supply problems.

What about individuals who arrive in the UK for work purposes or who are returning from a foreign work trip?

In general, individuals who are permitted to enter the UK, have, depending on their departure destination, to comply with the relevant self-isolation and quarantine rules applicable to the country from which they have arrived and/or transited through. Note that if a person is arriving from an amber country but has transited through a red country, the UK’s red country arrival and quarantine conditions apply.
 
The UK government has a number of ‘travel exemptions’ for certain jobs in respect of release or limited exemption from self-isolation and/or quarantine. The current full list of exemptions and conditions which must be met for an exemption to apply is at Coronavirus (COVID-19): jobs that qualify for travel exemptions - GOV.UK.

Can an employer require employees to wear masks?

In England, while the legal requirement to wear masks in shops and while on public transport generally no longer applies, many businesses and some transport operators are making it a condition of entry or use that individuals continue to wear masks (unless exempt).

Generally, other than in specified areas where mask wearing has been or is still required by law or where another person such as a landlord has required mask wearing in common parts of office buildings as part of their Covid Secure policy, it is left to employers to determine their own mask wearing policy at work as part of their Covid-19 risk assessment.

An employer may, as part of its continuing Covid Secure policy, decide that in certain areas of its premises (e.g., common office areas) masks must be worn and/or continue to be worn but that they need not be worn in other areas e.g. individual offices. The employer's policy should be clear and easily understandable by employees and others, such as visitors to offices, who will be asked to comply with it.

Whether a mask policy is being maintained or varied it is good practice to remind staff of the policy in force and of any accommodations (e.g., for those who cannot wear a mask for medical reasons) on a regular basis.

If an employee is not prepared to wear a mask (without good reason) when required by the employer's policy, the employer will have to decide whether the employee should be subject to any disciplinary process. Before commencing any process, an employer should explore with the employee concerned:

• why they are not prepared to wear a mask;

• whether an alternative form of covering may be used; and/or

• whether there are any other accommodations which can be reached
  e.g., whether the employee can work from home or in a work area where they are not in contact with other staff particularly those who are clinically vulnerable.

If no accommodation can be reached, and the employer is not prepared to allow the employee to attend work without wearing a mask, the employer may ultimately take the decision to dismiss. However, the employee may assert that the employer's reason for the dismissal was not reasonable and that they have been unfairly dismissed.

Can an employer require staff to be vaccinated?

The United Kingdom has a relatively high vaccination roll-out rate with all over 18's offered their first vaccination 'jab' by mid-July. As at 19 July 2021, more than 46.3 million people in the UK had received at least one dose of a coronavirus vaccine and more than 36.2 million had received a second dose.

At present there is no legal requirement for individuals to be vaccinated and measures taken so far by England and the devolved governments have relied on explanation and encouragement to encourage vaccine take-up.

However, the UK government has  tabled a statutory instrument (The Health and Social Care Act 2008 (Regulated Activities)( Amendment)(Coronavirus) Regulations 2021) which will mean that it will not be lawful for a care or nursing home in England to employ care and nursing home staff who are not vaccinated unless the individual cannot for clinical reasons be vaccinated. This regulation will come into force on 11 November 2021 after a 16 week 'grace period', and may allow care and nursing home employers to lawfully dismiss employees who are not prepared to be vaccinated (unless of course exempt from vaccination).

If an employer is proposing to impose a requirement for existing or new employees to be vaccinated as a condition of employment:

• It will need to consider whether this is a proportionate and reasonable approach to its health and safety policies and in particular its Covid-19 risk assessment.  It may be that in certain workplaces the employer's assessment is that having the vaccine is the most reasonably practicable way of mitigating Coronavirus risk.  However, in practice this is only likely to be seen as a reasonable measure in very limited cases.

• It should do so after appropriate consultation with employees about the rationale for the change and prepare a vaccine policy if it does not have one in place.

• It should consider whether the contracts of employment of existing employees will require amendment if it wishes to introduce a 'vaccine condition' to continuing employment.

• It should also consider how long it will give employees to comply with any new requirement to be vaccinated and what if any steps it will take should an employee refuse to be vaccinated.

• In implementing any contractual change or policy the employer should consider how it will deal with individuals who cannot be vaccinated or who, despite being vaccinated, have no antibodies, who will potentially have claims for indirect discrimination if the employer introduces a condition for employment with which they cannot comply.

• In introducing any vaccine condition of employment, an employer would also have to have regard to the possibility that, if introduced before the end of September 2021, it is potentially indirectly discriminatory towards younger people aged 18 to 24 who will, on current timing, not be offered the second vaccine dose until the middle to end of September.

Can employers require employees to disclose their vaccine status?

An employer may request employees to disclose their vaccination status if it considers as part of its Covid Secure policy this is an appropriate measure as part of its Covid-19 risk assessment process.

Where the employer proposes to collect such data, it should:

• document why it considers this appropriate;

• decide if it needs to conduct a Data Privacy Impact Assessment;

• review its Data Privacy Policy to determine whether this needs updating; and

• be prepared to explain to employees why it wishes to collect the data, how it will be kept secure and for how long it will be retained.

As with any Covid-19 policy, explaining to employees the rationale for the request for information and getting 'buy-in' is essential if employees are to agree.

Can an employer require employees to have a Covid-19 test as a condition of attending a workplace?

In principle if, as part of its Covid-19 risk assessment, the employer concludes that attendance at the workplace is to be subject to an individual taking a Covid-19 test, such as a lateral flow test (LFT), at the work place or at home and reporting the result to the employer, it may do so.

Again, the employer should consult with employee representatives before introducing any testing and/or reporting requirement.
 
Any new policy requiring regular testing should also provide a clear explanation to employees about what the position will be if an employee's LFT result is positive

e.g. whether they will be required to go or remain home until they can obtain a PCR test, what will happen if the PCR test is negative or positive, and how they will be paid for any period of absence.

Any policy should also tell the employees what the employer’s position is, in respect of employees who decline to take tests and/or report the results to the employer.

                                                                                                                     
1. Each of the devolved governments in Scotland, Wales and Northern Ireland have their own guidance which must be considered in updating or developing plans for workplaces in those countries.

ABOUT BAKER BOTTS L.L.P.
Baker Botts is an international law firm whose lawyers practice throughout a network of offices around the globe. Based on our experience and knowledge of our clients' industries, we are recognized as a leading firm in the energy, technology and life sciences sectors. Since 1840, we have provided creative and effective legal solutions for our clients while demonstrating an unrelenting commitment to excellence. For more information, please visit bakerbotts.com.