Alert Level Zero in Wales: can everyone now go back to the office?

Early in August, Wales moved to Alert Level Zero. That was a huge relief for many sectors, particularly the hospitality industry, but does that mean that everything is now back to normal? Can employers now ask all their staff to go back to the office? Well, not quite.

New guidance was issued by Welsh Government beforehand – made under regulation 18 of the Health Protection (Coronavirus Restrictions) (No. 5) (Wales) Regulations 2020, it sets out further information on the practical application of the legal requirements under regulation 16. The amended regulations can be found here.

For employers, the relevant provisions are contained in Regulation 16 which sets out three steps that must be followed by those responsible for “regulated premises” to minimise the risk of exposure to Covid-19. (“Regulated premises” include any premises where work is carried out.) The three steps can be summarised as follows and these are legal requirements rather than just guidance:

Step 1

A specific assessment of the risk of exposure to coronavirus at the premises must be undertaken and, as part of that process, individuals working on the premises or their representatives must be consulted.

Step 2

Information should be provided to those entering or working at the premises about how to minimise the risk of exposure to coronavirus, including information about the risks of exposure to coronavirus identified under the Step 1 risk assessment and the measures to be taken under Step 3 to minimise those risks.

Step 3

Reasonable measures should be taken to mitigate the risk of exposure to coronavirus that arises when people gather on the premises and these include:

• Preventing those who have tested positive, or are experiencing symptoms, from being on the premises
• Limiting close physical interaction through layout, control of entrances and passageways, controlling the use of shared facilities and installing barriers or screens
• Limiting the time during which people are present on the premises
• Ensuring good ventilation
• Maintaining good hygiene
• Use of PPE.

The guidance sets out five ways to minimise risk described as a “hierarchy of controls”. This is illustrated by the infographic below:

Detailed guidance is given on each of the potential control measures within the guidance. There is also detailed guidance on what may constitute a “reasonable” measure and the factors to be taken into account including cost, the nature of the work, whether measures might compromise other aspects of health and safety, the nature and capacity of people within the workplace (e.g. service users) and whether the measure will command the confidence of the workforce.

There is a dedicated section on working from home. The following wording is of note and replicates the wording of the previous workplace guidance (first put in place in December 2020):

“The most effective way of minimising the risk of exposure to coronavirus in workplaces is to enable some or all staff to work from home, as often as possible. As “reasonable measures” there is an expectation that employers should be flexible and make adjustments wherever that is possible. For example, issuing staff with IT equipment (laptops, monitors, keyboards), office furniture, mobile phones and facilitating communication across locations.

Employees should not be required or placed under pressure to return to a workplace setting if there is not a clearly demonstrated business need for them to do so.”

The guidance also provides that employers should consider whether any individual’s wellbeing would be particularly adversely affected by returning to the workplace. This might include people who are at increased risk, are clinically extremely vulnerable or those who might suffer severe anxiety as a result of returning to the workplace. Conversely, there may some staff who want to return to work for the benefit of their wellbeing and that can also be taken into account, albeit the guidance makes it clear that the first priority is minimising the spread of the virus.

There is a separate section on physical distancing which provides that although this is constrained by the size of the premises, the starting point is that consideration should be given to how people could be kept physically apart and how close face to face interaction could be prevented or minimised. The risk assessment should establish the appropriate number of people who can be present in the workplace and that information should be made available publicly e.g. through signage.

Conclusions

Whilst the strict legal requirement to maintain two-metre distancing has now gone, the duties on employers under the regulations and guidance are quite onerous. The burden of assessing what is “safe” has now shifted to the employer, who must carry out a detailed risk assessment.

Much will depend on the sector in which the employer operates and those who are public facing, or in manufacturing, may be able to justify bringing all their employees back to the workplace, although other control measures need to be considered. However, for those employers whose workforce is office based, it is questionable how much has really changed. There is still an emphasis on working from home where possible, which is identified as one of the most important control measures to be considered. This fits in with Welsh Government’s published strategy of having 30% of workers working at or around home. Therefore, for most employers, save for those with the most spacious of offices, it is likely that they will need to incorporate some element of home working for the foreseeable future.