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Covid-19 business criminal law and other issues - tips to avoid or mitigate risks

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As lockdown restrictions begin to ease, businesses will begin to resume in-person operations. Residual risks from Covid-19 will make this a complex exercise and new procedures will need to be put in place or adjusted to ensure the safety of employees and staff and so as to minimise legal risk.  Any such procedures may themselves carry legal risks that will need to be considered (e.g. regarding data protection, human rights, employment protections etc.).  Although it is not possible to be exhaustive, we below list various practical issues that businesses may wish to consider.  Inevitably employees will be nervous about coming back to their places of work, some more than others.  Basic principles of good HR management, such as clear communications with employees on steps being taken to reduce risk, will assist in reducing concerns.

Whatever steps are taken, it is critical that businesses document all issues considered, decisions and steps taken, including all risk assessments, amendments of policies and procedures, communications to staff around new expectations and requirements and all other virus-related issues, including when lockdown measures are eased.

Things businesses can and should be doing and planning now

  • Keep up to date with changing government rules and follow all relevant guidance from governmental bodies and regulators, as well as any relevant general industry guidance or industry sector-specific guidance. Ensure mechanisms are in place for keeping abreast of latest developments with senior responsibility for delivery.
  • Plan now on how to ensure all practically realistic steps to protect the workforce and public from exposure to risk are taken and to meet all legal requirements.  Such steps might include:
    • modifying workspaces to provide greater distance between staff
    • suspending “hot-desking” and the sharing of equipment
    • introducing screens or partitions (e.g. in open plan offices or in reception areas) – if appropriate, these should be ordered now to avoid being unable to source them later or source them at reasonable prices
    • using signage (or floor markings) to indicate maximum numbers of people allowed in particular rooms/areas at any one time, to remind staff of hygiene and social distancing requirements and other new rules and policies
    • reducing workplace services to avoid risk of additional exposure if additional risk cannot be mitigated (e.g. company canteens/ restaurants/kitchens/coffee machines)
    • closing communal spaces to discourage gathering
    • increasing frequency of deep-cleaning
    • improving ventilation and ensuring air-conditioning does not recirculate air
    • providing hand sanitiser and other cleaning products for use by staff at their workspaces if they wish in addition to regular daily cleaning
    • modifying doors, toilets, dispensers and taps so that they operate automatically
    • staggering staff attendance at work and/or shift times to ensure distancing requirements can be achieved
    • restricting face-to-face meetings and client meetings where they can be conducted remotely
    • restricting business-related travel
    • introducing policies around personal travel and notification requirements and potential quarantining following any personal travel (should holiday travel restrictions be lifted)
    • providing PPE as appropriate
    • conducting staff (and visitor) temperature checks and confirmation/self-certification protocols concerning personal health
    • encouraging employees to bring all food/drinks from home
    • requiring employees to be using a government sanctioned tracking app (if available)
  • Consider which employees should return and when. Ensure all locations and staff are considered and that appropriate provision is made for all: 
    • Planned steps may need to differentiate between staff exposed to different risks due to their personal circumstances or characteristics (e.g. age, pre-existing conditions), roles (the job can be easily undertaken remotely) or locations (e.g. exposure to the public and/or proximity to other staff). 
    • Plan now on how to respond to, and accommodate, staff at high risk, or who have high risk family members, or who for other reasons (e.g. due to the need to use cramped public transport) may have concerns about returning to work notwithstanding relaxation of restrictions. Should staff be encouraged to self-report health vulnerabilities?
  • Work closely with HR departments to ensure staff welfare (physical and mental) is being considered and efforts are undertaken to support vulnerable staff. 
    • Consider how to support staff with health issues arising from the lockdown or those with vulnerable family members.
    • To the extent that sensitive (or “special category”) personal data about staff medical conditions or circumstances is being processed by businesses, ensure current data privacy and protection policies and controls have been reviewed and amended as necessary to accommodate this and that appropriate security measures are in place.  In particular, extra care should be taken around processing such data, with additional protections and restrictions on access and use.
  • Plan now on how to deal with any instances of staff contracting the virus following relaxation of restrictions and how the business will respond to that, both in respect of individual cases but also where higher numbers of staff are infected. 
    • This may include some form of contact tracing within the workplace (and/or with business partners and clients), as well as consideration of re-imposing shutdown or work from home rules. Consider pre-preparing communications for different scenarios so that internal and external messaging can be delivered quickly and effectively. Consider when it would be reasonable to tell other employees about an individual’s infection by the virus or exposure to it.
  • Management/ heads of operational functions should consider role-playing “what if” scenarios to identify risks, their likelihood of materialising and how the business would respond, including whether anything needs to be done now to enable the business to respond effectively.

Things businesses should be thinking about when they seek to resume normal operations after lockdown

  • Ensure your business falls within any relaxation of restrictions before relaxing your own controls to re-open the business or return to more normal operations.
  • Keep risk assessments and company policies and procedures under continual review to ensure their validity. 
  • Continue regular communication with staff on latest governmental rules and guidelines and company policies and procedures. It is essential staff have complete clarity on key safety issues, including:
    • How they should make confidential notifications when they feel ill or exhibit any relevant symptoms (or where family members do).
    • What sanctions will apply if an individual does not comply with the self-reporting obligations.
    • When self-isolation steps should be taken and what those steps are.
    • How they can communicate their personal circumstances (on a safe and confidential basis). 
  • Encourage confidential reporting of concerns around health and safety issues and compliance and ensure no retaliatory steps are taken against those who do.
  • Provide mandatory and additional optional training on maintaining a safe workplace and operate best practice hygiene activities.

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