Q: Do I need to ensure my employees wear face coverings?

From 27 January 2022 face coverings are not legally required in any setting in England. Public health guidance still recommends face coverings in crowded and enclosed spaces, where people encounter others they do not normally meet. The rules differ in Scotland, Wales and Northern Ireland as summarised below. 

Employers should ensure the measures identified by their risk assessments reflect the public health guidance for the relevant nation they have workplaces in. 

Employers must protect staff against abuse or threats of violence if members of the public are still asked to wear masks and they refuse. Many retail employers have previously adopted the solution of communicating guidance or rules about face coverings, but not requiring staff to challenge those who refuse to comply.

England
Employers in the retail or other establishments who previously were legally required to ensure face coverings for employees and visitors in public facing areas are therefore no longer subject to mandatory face coverings. Employers may decide to continue face coverings in the short term, for example if local COVID 19 rates are high. Mask wearing still applies on some public transport.

Employers must still control risks and review and update their risk assessments. The Health and Safety Executive emphasises continuing to consult the workforce on health and safety matters to help reduce risk. Matters such as ventilation, cleaning, hand hygiene and reducing contact for workers remains important as part of workplace guidance.

Scotland

In Scotland wearing a face covering continues to apply in public spaces, shops and bars, restaurants, cafes and nightclubs as well as on public transport and at work and in secondary schools.

Wales
Face coverings remain a legal requirement in Wales in most indoor public places, including public transport, shops and in health and social care settings. Face masks are not required in hospitality settings, such as restaurants, pubs and cafes where food and drink is served. In multi-purpose businesses such as a theatre with a bar, then face coverings must be worn by staff and customers in all areas of the business apart from the specific areas where food and drink are consumed. The law on face coverings in Wales will be reviewed on 10 February 2022.
 
Northern Ireland
It remains a legal requirement for people to wear face coverings in many indoor settings such as public transport and in shops unless people are exempt. Businesses should still be encouraging people to wear face coverings but from 21 January 2022 no longer have to ask for proof of exemption. The requirement to provide proof of exemption from wearing a mask is replaced with what is known as a reasonable excuse of severe distress.

Employers should continue to check the relevant guidance which is being updated regularly:


Q: From a health, safety and wellbeing perspective, what are the main aspects of the guidance about managing a safe workplace?

The ‘working safely’ guidance provides precautions that employers can take to manage risk and support their staff and customers. Scotland, Wales and Northern Ireland are giving different advice, so employers should ensure they keep up to date with different guidelines in different areas. 

The overall gist of the guidance is that employers have a high degree of responsibility to care for employees and customers, which also applies during the pandemic. The guidance suggests that many precautions should continue, despite the voluntary language used. There are numerous reminders of how employers’ normal legal obligations include a duty to manage risks for all of those affected by their business. Measures include carrying out health and safety risk assessments and taking reasonable steps to mitigate risk.

The six pieces of guidance for various sectors of the economy cover a range of different types of work including all offices, factories and labs. Separate guidance covers construction and other outdoor work, events and visitor attractions, hotels and guest accommodation, restaurants, pubs, bars, nightclubs and takeaway services, shops and similar environments and close contact services, including hairdressers and beauticians. Employers may need to use more than one of these guides as necessary.

The guidance focusses on the following priorities:

1. COVID-19 risk assessments

The guidance emphasises the role of risk assessments in ensuring a safe workplace. These can be either specific COVID-19 risk assessments or take COVID matters into account as part of regular risk assessments.

2. Adequate ventilation

The government has placed more emphasis on ventilation, also referring to the advice on air conditioning and ventilation on the HSE website. Ventilation has as much, if not more, emphasis than social distancing. As well as good ventilation, limiting the number of face-to-face contacts and reducing the number of people in an area is advised.

Employers with air-conditioned buildings or sealed window units could have the system checked and monitored, measuring air flow and fresh air. Most air conditioning systems do not need adjustment if they draw in a supply of fresh air. CO2 monitors can be used to indicate how well-ventilated workplaces are. HSE information suggests that CO2 monitors have limitations and test results can be misleading and are time-limited to the time of the test.

Some employers may be able to reduce occupancy levels or adopt social distancing to help ventilation issues.

3. Cleaning

Cleaning tips include reviewing cleaning procedures and providing hand sanitiser as well as frequent cleaning of work areas, objects and surfaces and equipment between uses including door handles and keyboards. Using usual cleaning products is fine but there is special guidance on cleaning after a confirmed case of the virus.

Extra non recycling bins may be needed to dispose of single use face coverings and PPE. Employers should continue to use signs and posters to remind employees about hand washing techniques and hygiene standards. Guidance on signage also suggests continuing to remind employees to maintain overall hygiene standards and wear face coverings in crowded and enclosed settings.

4. Turning away people with COVID-19 symptoms

An aspect that receives little publicity is that businesses are encouraged to turn away people with COVID-19 symptoms. This will be difficult for employers to determine as the initial symptoms of a cold and COVID-19 may be similar. It remains an offence to allow a person who should be self-isolating to come to work.

5. Enabling check in using the NHS COVID-19 App

Businesses do not have to ask people to check in, or turn people away if they refuse other than for establishments where the passes have become mandatory. The places where COVID-19 passes are required are slightly different in different parts of the UK. More information is available in the vaccination and testing FAQs.

Q: What does the government advice say about COVID-19 risk assessments?

The government guidance emphasises that risk assessments have a crucial role in ensuring a safe return process. The guidance seems to include COVID-19 as another workplace hazard that must be managed with other hazards.

All employers in England should follow government and Public Health England advice guidance on how to manage workplace risk. Employers should always keep risk assessments under review and keep evidence that safety measures were implemented and complied with. They should also consider who they are asking to come into work and if it’s safe to so. This will entail considering the government’s specific guidance to employers covering measures such as face coverings, testing, ventilation, increased workplace cleaning, changing office layouts, keeping a safe distance at work, supplying safety equipment etc. Employers who have complied with their duty of care, conducted thorough risk assessments, and implemented safety measures, will be in a stronger position to ask employees to return to workplace.

You may wish to refer to the Health and Safety Executive website for more information.

Employers will already have renewed risk assessments in the earlier stages of the pandemic and should do so again to consider new guidance, increased scientific knowledge and developments such as the impact of vaccination and coronavirus variants.

The end goal is to adopt appropriate control measures which reduce or remove the risks of contracting COVID-19 when returning to the workplace. The risks around visitors entering the workplace, such as customers, should be assessed too as there is also a legal obligation to ensure their health and safety. 

It may be safer in the short term to retain existing control measures such as social distancing even though this can be difficult to implement. For example, employers may decide that only fully vaccinated employees or employees with a negative lateral flow test should attend the workplace, or retain social distancing as a key control measure.

Certainly, following the HSE guidance (as it is updated) is sensible. Any employees with an axe to grind may be able to show a breach of employers’ duties of care if there is a significant departure from official guidance. Employers need to keep risk assessments under review.


Q: Do employers have to keep measures in place to manage COVID risks even if all their staff are vaccinated?

Yes, employers have to keep measures in place to manage COVID risks even if all their staff are vaccinated. It is important to keep measures in place to reduce the risks of transmission even if employees are vaccinated.

Regular testing is encouraged by other government guidance. Employers may consider asking employees for their vaccination status as part of any gradual return to the workplace. It is generally less contentious to require employees to adopt regular testing rather than mandating vaccination alone. For further details see our vaccination and testing FAQs.


Q: What should I do if an employee refuses to follow our COVID safety measures?

If an employee refuses to follow their employer’s COVID safety measures for any reason, employers need to engage with those employees. The first step is always to have a sensible conversation. Matters needing explanation include the emergence of variants, current rate of infections in the area, the detail and nuances of the government’s advice plus an explanation of the employer’s other legal obligations in the workplace.

Government advice
The main government advice on working safely is contained in six pieces of guidance for various sectors of the economy. The advice generally recommends numerous precautions in crowded settings, for example, the importance of ventilation.

Employers and individuals may interpret the changes differently and so employers must explain any measures that they decide to implement in line with the latest government advice.

Employers can also explain to staff about measures retained by other businesses and that staff may be encouraged to continue to wear masks even in sectors not covered by any mandatory rules. For some employees, removal of full mask wearing may exacerbate anxiety, especially when precautions are in place in other sectors. 

Employers’ legal duties
The health and safety of employees in the workplace remains of paramount importance even if employees are vaccinated. Employers’ legal duties continue alongside any government guidance. Both employers and employees have independent statutory duties under the Health and Safety legislation to take reasonable care for their own health and safety, and that of employees.

Employers should emphasise to employees they have duties under the Health and Safety at Work Act 1974 (and ancillary regulations) which mean they have to control the risk of harm to visitors, customers, clients, suppliers, on-site contractors or other workers or members of the general public as well as employees. 

It is therefore up to employers to decide which additional practices and policies they wish to adopt and educate and train staff accordingly. Employers must assess the risks presented by their workplace and may need additional measures, especially for higher risk groups. Advice from Public Health England is still that employers should ensure that the workplace is safe, hygienic, ventilated and that there are measures in place to protect employees, as far as possible, from the risk of contracting COVID-19. Advice is available from HSE on making your workplace COVID-secure during the coronavirus pandemic.

Ultimately all employees must obey employers’ reasonable instructions. If an employee refuses to follow an employer’s coronavirus safety measures because they say the government has lifted all restrictions, they could be breaching this duty to obey reasonable instructions. Extreme examples of disobedience may be a fundamental breach of contract entitling the employer to dismiss, having followed appropriate procedures. Although, obviously, dialogue, explanation and employee engagement are preferable to commencing disciplinary proceedings with a view to dismissal.

Employers should keep checking for the latest government advice and continue to communicate with employees about what these changes mean.


Q: What if our people have anxiety about travel on public transport?

Employees' concerns about safe public transport should be taken into account in the planning and management of any safe workplace. 

It is sensible if all unnecessary work-related travel is minimised and government guidance has previously encouraged cycling or walking to work wherever possible. Employers can also implement measures such as:

  • Staggering rotas arrival and departure times to reduce crowding
  • Providing additional parking/bike racks
  • Continuing home working on a full or hybrid basis provided that some or all of an employee’s work can be performed remotely
  • Altering work duties by agreement to accommodate those who are anxious to avoid crowded public transport.
Those who need to use public transport, should follow transport operators and government public transport guidance.

Many employees may have legitimate concerns about using public transport, especially as government advice says crowded transport may be an issue. For employees who continue to be reluctant to come into work, from a legal standpoint, on the one hand, under the Employment Rights Act 1996 employees can claim that they have suffered a detriment on health and safety grounds, or claim automatically unfair dismissal if the employee reasonably believes there was a serious and imminent danger which justifies their refusal to return. On the other hand, in all employment contracts there is an implied term that employees must follow their employer’s lawful and reasonable instructions. Employees could therefore face disciplinary action if their continued refusal to attend work is unreasonable. However, avoiding public transport may seem preferable to some especially when the government and transport operators have made masks mandatory. There is at least a risk that disciplining employees for refusal to travel may result in a health and safety detriment, unfair dismissal or discrimination claim.

The employer should listen to the employee’s concerns, especially if they are vulnerable or have a disability and consider their proposals and accommodate them as far as practicable. Every employee should have the opportunity to discuss any concerns about their commute and ability to arrive safely with their manager and this should take place well in advance of the day that individual is expected to return.

Employers should also remember that employees with some mental health issues may be anxious about travelling and if their mental condition constitutes a disability the employer should try and accommodate their request. This could include staggered working hours, unpaid leave or use of annual leave to achieve a phased return.


Q: Where does liability sit if employees catch coronavirus at work or on the way to work?

Employers have existing contractual and statutory duties to take care of employees’ health and safety. If employees can prove they caught coronavirus at work and the employer cannot show they have taken appropriate steps to prevent this, the employer could be liable for the employee’s losses. Some employees may be unable to work for some-time and some may have more serious long term health implications. Although it should be rare, some employees may be able to establish the employer unnecessarily exposed them to danger and risk. Potential liabilities include health and safety protections, unfair dismissal and discrimination claims. 

In the medical research, health and care sectors workers who subsequently develop coronavirus may have reasonable evidence that the exposure arose from the workplace. In other contexts, it will be harder to prove. However, there are many potential liabilities for failure to take care of staff, particularly if they are especially vulnerable. It is better for employers to be able to show that appropriate protections and adjustments were taken.

Managing risks

Employers should keep records to show that they have conducted appropriate health and safety risk assessments to identify and manage risks appropriately and that they have:

  • Undertaken workplace safety audits.
  • Considered testing and/or checking vaccine certification at work.
  • Updated health and safety policies and procedures.
  • Identified potentially hazardous situations.
  • Made changes to reduce exposure.
  • Trained employees and communicated new policies and procedures to them.
  • Monitored the workplace to ensure compliance by employees with new health and safety rules, policies, practices and procedures.
  • Performed random checks and kept ongoing compliance reports in regular ongoing efforts to ensure compliance.
  • Encouraged reporting of problems and have an open environment that welcomes feedback.

Some relevant legal aspects are set out below.

Other duties at work

As well as the overriding duty to care for employees’ health and safety the following duties apply:

Risk assessment: Employers who have employees returning to their usual workplaces will need to ensure that they have conducted appropriate health and safety risk assessments to identify and manage risks appropriately. See our Q: What does the government advice say about COVID-19 risk assessments?

Reporting: The Health and Safety Executive (HSE) has issued guidance on reporting cases of COVID-19 under the 2013 Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR). Reports will only be needed if:

  • A worker has been diagnosed as having coronavirus and there is reasonable evidence it was caused by work exposure. This must be reported as a case of disease.
  • An unintended incident at work has led to someone's possible or actual exposure to coronavirus, this must be reported as a dangerous occurrence.

Such incidents are more likely to occur in a laboratory, health or care setting. HSE guidance does not suggest that every case of COVID-19 in the workplace is reported, and it is unlikely that extensive RIDDOR notifications will be made. Employers must consider the individual circumstances when they decide whether to report.

Travelling to work

It will be difficult for employees to prove that they contracted the disease travelling into work and that the employer should be liable. However, employers may be liable if employees can show that they were unnecessarily exposed to risk when there were alternatives available. 

Employers could consider, where possible:

  • Provision of parking spaces.
  • Secure bicycle parking.
  • Shower facilities.
  • Flexible or staggered working hours by agreement to enable employees to avoid more crowded public transport.
  • Special provisions for vulnerable staff eg elderly, pregnant, and those with impaired immunity helping them to avoid public transport or its use at peak times.

Q: How should we support pregnant employees?

The government has produced guidance for employers to make workplaces COVID-secure and so employers should keep checking the government website for the latest information.

Risks to pregnant women

Pregnant women have extra statutory protection to ensure they are protected from risks at work. Employers have a duty to protect all employees and an even higher duty towards any staff who are pregnant. Employers of pregnant women should be extra cautious and try to avoid pregnant employees taking unnecessary risks. In connection with coronavirus employers should consider allowing continued home working if possible, especially in areas where rates are high.

In some roles where it is not possible to offer home working, pregnant employees can be offered suitable alternative employment on a temporary basis (that could be done from home) or suspended from work on medical grounds (on full pay). Other potential adjustments include temporarily altering the employee's working conditions or hours of work. If the pregnant employee remains suspended until the fourth week before the expected week of childbirth or is absent from work for a pregnancy-related reason, this triggers the commencement of her maternity leave.

From July 2021 onwards, the government gave employers more discretion to decide how their staff can work safely, which can mean making workplaces safe or continued employees homeworking if they can. Pregnant employees and their employers should take particular care to reduce risk which may still mean minimising contact with others outside their household. Home working for pregnant women who wish to do this is one way of working safely. 

Guidelines
The Department of Health has issued guidance applicable in England, Scotland, Wales and Northern Ireland for pregnant woman who are working as an employee, including healthcare professionals.

Employers have ongoing duties under health and safety legislation and should undertake risk assessments, once any pregnant employee has let them know about the pregnancy. Pregnant women should not be required to continue working at any stage, if this is not supported by the risk assessment. There are different government guides for different industries, for example information and advice to be used as the basis for a risk assessment may be obtained from:

  • occupational health departments, 
  • workplace risk assessment guidance for healthcare workers and for vulnerable people working in other industries, or
  • Royal College of Obstetricians and Gynaecologists  and Royal College of Midwives guidance (see the RCOG/RCM guidance on coronavirus (COVID-19) in pregnancy).

Line managers, pregnant employees and occupational health teams can discuss how to ensure health and safety in the workplace. Although pregnant woman are no more at risk of contracting COVID-19 than any other person, there may be an increased risk of becoming severely ill or having a pre-term birth if they contract COVID-19 or have underlying health difficulties.

The advice is different for women depending on whether they are under or over 28 weeks pregnant.

For women under 28 weeks pregnant (with no underlying health conditions) employers should:

  • have a workplace risk assessment with the employer and occupational health team;
  • only allow the employee to continue working if the risk assessment advises says it is safe to do so;
  • ensure the employee can adhere to any remaining guidance on social distancing;
  • remove or manage any other risks;
  • if risks can’t be manged offer suitable alternative work or working arrangements (including working from home) or suspend on normal pay.

including the extent to which it is possible to follow social distancing, minimise the use of public transport and stay two metres away from others wherever possible. 

Pregnant women and anyone with underlying health conditions must therefore still minimise contact with others, for example, employers could provide pregnant women with their own office or if they cannot offer safer work, then working from home or agreed suitable alternative work may be the best options.

In healthcare settings work may entail  specific higher risks of exposure to the virus (see the Public Health England Guidance on Infection Prevention and Control). Employers should adopt appropriate risk mitigation after the assessment.

Pregnant women who are 28 weeks pregnant or more (or with underlying health conditions)  should be more cautious as they may be at a greater risk of severe illness from coronavirus. Employers should:

  • adhere to any active national guidance on social distancing;
  • consider the employee working flexibly from home even if in a different capacity;
  • consider how to redeploy staff and how to maximise potential for homeworking, wherever possible.
If adjustments to the working environment or role are not possible and alternative work cannot be found, the employer may need to suspend the employee on paid leave (see HSE guidance).

Vaccines

Due to the swift roll-out of the vaccination programme in the UK, large numbers of staff will now be fully vaccinated. For pregnant staff there are two main possibilities:
  • An employee who has previously been vaccinated then becomes pregnant.
  • An employee who has not yet been vaccinated is pregnant.

From 16 April 2021 the Joint Committee on Vaccination and Immunisation (JCVI) has advised that pregnant women in the UK can be offered the COVID-19 vaccine.

Public Health England advises that: 

  • The COVID-19 vaccines available in the UK have been shown to be effective and to have a good safety profile. The MHRA has confirmed that the COVID-19 vaccines are generally safe and effective. 
  • There have been no specific safety concerns from any brand of coronavirus (COVID-19) vaccine in relation to pregnancy and all vaccines being used in the UK have undergone full clinical trials. 
  • These COVID-19 vaccines do not contain organisms that can multiply in the body, so they cannot infect an unborn baby in the womb.
The overall advice still states that pregnant women should discuss the benefits and risks of having the vaccine with their healthcare professional and reach a joint decision based on individual circumstances. Discussions should include which vaccines they should receive and the latest evidence on safety. For example, pregnant women who are frontline health or social care workers, including carers in a residential home may have a higher risk of exposure to COVID-19 and may decide it is better to receive the protection from the vaccine.

As the effects of infection in pregnancy remain under consideration, employers should take great care to protect both pregnant women who have previously been vaccinated and those who have not.

Employees who are breastfeeding or trying to conceive

Women who are planning pregnancy, or have recently given birth can be vaccinated with both doses of any vaccine, depending on their age and clinical risk group. 

It appears that women who are breastfeeding can also be given any vaccine. 

Precautionary government advice remains to reach a joint decision concerning the vaccine with a health care professional, so this would apply immediately before pregnancy and perhaps during breastfeeding too. The  JCVI and the World Health Organisation has recommended that a vaccine can be received whilst breastfeeding. However, employees who are breastfeeding.

Employers should support women who think they may be pregnant or who are planning a pregnancy.

Employers should keep checking current government guidance.

Health and safety

If a pregnant employee’s colleague or someone else in the workplace has coronavirus symptoms or has been in contact with others with COVID-19 that person may consider themselves in serious and imminent risk of danger to health and safety. In such situations, there is special protection against dismissal and detrimental treatment if the pregnant women wants to leave work to protect herself.

This protection is under Section 44 of the Employment Rights Act 1996 and requires a reasonable belief that there was a serious and imminent risk based on the situation at the time and the steps taken and advice given about the risks.

Clinically vulnerable and extremely vulnerable

Most pregnant women fall into the ‘clinically vulnerable people’ category who were advised to take particular care, but not to 'shield'. The formal shielding programme has ended but for general advice for the clinically vulnerable please see our changes to shielding guidance.

Only some pregnant employees are classed as clinically extremely vulnerable to coronavirus, including women with significant heart disease who are pregnant. Most CEV people have now been fully vaccinated, but pregnant women who are not vaccinated are in need of heightened precautions.

Maternity leave

Employees who are pregnant during the pandemic can start maternity leave as usual.

Leave and pay

For staff already on maternity, paternity or adoption leave or shared parental pay normal rules for statutory pay apply. For example, eligible mothers will be entitled to claim up to 39 weeks of statutory maternity pay or maternity allowance. The rate is 90% of average weekly earnings for the first six weeks, followed by 33 weeks of pay at 90% of average weekly earnings or the statutory flat rate (whichever is lower).


Q: Should risk assessments cover mental health aspects too?

Yes, employers’ health and safety duties extend to mental health and wellbeing so risk assessments should cover managing mental health and wellbeing aspects too. You may wish to refer to the Health and Safety Executive stress risk assessment tools. Employees with new working arrangements in the workplace and working from home can suffer from stress or mental health issues, so employers must maintain contact and look for signs of problems. Employers have the same health and safety responsibilities towards those working from home as for any other workers, including for their mental health. For more information see the FAQs on managing remote working. Employees who have been furloughed should be given specific consideration.

As well as implementing or reviewing policies and procedures and proactively monitoring and keeping in contact, employers should point staff to other support that is available. Managers may need fresh training in recognising the symptoms of poor mental health so they can signpost to early intervention and expert support such as occupational health, an employee assistance helpline.

If an employer becomes aware that particular employees are struggling with their mental health, they should conduct individual risk assessments for both home and workplace workers.

More guidance on supporting mental health is available in our guide on mental health support for employees during COVID-19.


DISCLAIMER: The materials provided here are for general information purposes and do not constitute legal or other professional advice. While the information is considered to be true and correct at the date of publication, changes in circumstances may impact the accuracy and validity of the information. The CIPD is not responsible for any errors or omissions, or for any action or decision taken as a result of using the guidance. You should consult the government website for the very latest information or contact a professional adviser for legal or other advice where appropriate.

If you have other queries about COVID-19 not covered above, please contact the CIPD member employment law helpline on 03330 431 217 or visit the Community pages

We know that our members and customers are facing challenging times and we are here to help you. Due to a high number of calls we apologise that your wait time may be longer than usual. We appreciate your patience and will connect you to an expert adviser as soon as we can.

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