COVID – 19 in the workplace

New guidance recently issued by HSE, UKHSA and the ICO signals a relaxation of COVID -19 restrictions with the workplace going through a transition process to return it to pre-pandemic times. However, whilst most will be relieved to see life return to something close to “normal”, the risk of infection has not completely vanished, which means that everyone shares some responsibility to reduce the risk of spreading infections. Under the new advice, COVID-19’s significance is downgraded. The new goal is to reduce the spread of any respiratory infection, which includes COVID -19.

The UKHSA has published guidance for employers in England as of 1 April 2022. In summary:

• Employers should ensure that they maintain clean working environments – to assist with this it would be useful to have sanitising stations and antibacterial wipes available. It may also help to discuss with staff ways they can maintain a clean working area.
• Encourage and enable staff to get vaccinated. You can achieve this by being flexible when staff are arranging vaccination appointments and allowing them time to attend if they are unable to get an appointment outside of working hours.
• Considers ways to improve ventilation in the workplace. HSE has provided guidance for this on their website.
• The requirement for every employer to explicitly consider COVID-19 in their health and safety risk assessment has been removed.  
• To control occupational health and safety risks, employers should continue to comply with the requirements for cleaning, ventilation and welfare facilities in the Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992/3004) or, with regard to health and safety on construction sites, the Construction (Design and Management) Regulations 2015 (SI 2015/51). Employers have a duty to consult with their employees, or their representatives, on health and safety matters.
• It is recommended that employers consider those more at risk from COVID-19 and the best way to do this is to have conversations with employees about any adjustments that can be made to ensure they feel safe and that their health isn’t at risk.

The Information Commissioner’s Office (ICO) has also issued guidance on data protection obligations following the relaxation of COVID-19 rules.

In light of the changes, employers and organisations should check the following:

• Is the personal data that was collected as a response to the pandemic still necessary? They should ensure whether it is still reasonable, fair and proportionate to the current circumstances, taking the latest government guidance into account.
• Assess any additional personal data collected and retained during the pandemic and ensure that it is securely disposed of if it is no longer required.
• Check government guidance if continuing to collect vaccination information. The ICO's guidance highlights some data protection compliance issues including the need to identify a lawful basis other than "legal obligation" when collecting vaccination information if the legislation relied upon has expired. As a person's vaccination status is health data, both an Article 6 and an Article 9 condition for processing must be identified and in certain circumstances a data protection impact assessment will need to be completed. Data protection is only one of many factors to consider and organisations should also take into account employment law and contracts with employees, health and safety requirements, and equalities and human rights (including privacy rights).
• Data protection law does not prevent employers from keeping staff informed about potential or confirmed COVID-19 cases among colleagues, however, naming individuals should be avoided, and the information shared should be no more than necessary.

If you require any advice on employment law issues, please contact our employment team at Downs Solicitors.