Following the novel corona-virus disease 2019 (COVID-2019) pandemic, most of the Member States of the European Union (EU) have put in place a number of measures, including those affecting workplaces, to fight the spread of the disease. The business world is severely affected by this crisis, therefore, all sections of society – including businesses, employers and social partners have an important role in protecting workers, their families and the society at large.

The topic of “lockdown exit strategies” has dominated headlines in recent weeks, with governments around the EU and further afield beginning to announce plans for the reopening of businesses and economies in their jurisdictions.

Phased return to work...

A phased return to work is a plan laid out for individual staff members who are returning to work after a period of long term absence (over 20 days or 4 calendar weeks).Usually phased returns last up to four weeks and are designed to ease staff members coming back to work by gradually reintroducing them to the work routine.

Procedures for Safe phased return to work following COVID-19

On April 15th 2020 the European Commission set out a European ‘roadmap’ designed to manage a structured exit from various lockdown measures across member states within the E.U. European countries that have recently taken the first tentative steps towards loosening up COVID-19 restrictions include Spain, Italy, Denmark, Germany, Switzerland, the Czech Republic and Austria, with some businesses and schools being allowed to reopen.

Some countries have issued national policies and guidance for a safe return to work, and others plan to do so as the situation unfolds. The formulation of such policies and guidance should have a human-centered approach that sets the rights and needs of the countries workers’ at the heart of economical, social and environmental decisions

What are employers' obligations in respect of COVID-19?

Employers need to ensure that they are taking any necessary steps to protect their employees. All employers have health and safety obligations as well as a general duty of care towards their employees and should keep employees informed about health risks that may arise in carrying out their duties and ensure that working practices do not create undue risks to employees.

As such, employers should carry out a risk assessment and consider any factors that may make employees particularly susceptible to infection. Employers should also consider circulating up-to-date information on good hygiene practices and provide any necessary equipment to facilitate this, such as soap and hand sanitizers. For example, we recommend issuing a reminder on actions employees can take to help minimize the risk of COVID-19 spreading. Such advice may include:

  • CCover your mouth and nose with a tissue or your sleeve (not your hands) when you cough or sneeze
  • Put used tissues in the bin immediately
  • Wash your hands with soap often – use hand sanitiser gel if soap and water are not available
  • Avoid close contact with people who doesn’t feel well
  • Practice social distancing

We further recommend notifying employees where they can access more information if they are concerned, such as from the Public Health Agency of Sweden, 1177 Care Guides , Crisis Information, or the national COVID-19 hot line 113 13 .

Minimising exposure to COVID-19 at work

The implementation of safe work practices to limit exposure to COVID-19 at work requires a risk assessment as a first step but also requires an implementation of a control hierarchy.This means putting in place control measures to first eliminate the risk and if this is not possible, minimize worker exposure. Start first with collective measures and if necessary supplement them with individual measures, such as personal protective equipment (PPE). Below are some examples of control measures, however, not all of them will be applicable to all workplaces or jobs due to their nature.

  • Only carry out the most necessary tasks physically at the workplace; it may be possible to postpone some work to when the risk is lower. If possible, deliver services remotely (phone or video) instead of in person. Ensure that only workers who are essential to the job are present at the workplace and minimise the presence of third parties.
  • Reduce physical contact between workers as far as possible (e.g. during meetings or during breaks). Isolate workers who can carry out their tasks alone safely and who do not require specialised equipment or machinery that cannot be moved. For example, whenever possible, arrange for them to work alone in a spare office, staff room, canteen, or meeting room. If possible, ask vulnerable workers to work from home (older people and those with chronic conditions (including hypertension, lung or heart problems, diabetes, or who are undergoing cancer treatment or some other immunosuppression) and pregnant workers. Workers with close family members who are at high risk may also need to telework.
  • Eliminate, and if not possible limit, physical interaction with and between customers. For example, through online or phone orders, contactless delivery or managed entry (while also avoiding crowding outside), and physical distancing both inside and outside the premises.
  • When delivering goods, do so through pick-up or delivery outside the premises. Advise drivers on good hygiene in the cab and provide them with appropriate sanitation gel and wipes. Delivery workers must be allowed to use facilities such as toilets, cafeterias, changing rooms and showers, albeit with the appropriate precautions (such as allowing only one user at a time and regular cleaning).
  • Place an impervious barrier between workers, especially if they are not able to keep a two-metre distance from each other. Barriers can be purpose-made or improvised using items such as plastic sheeting, partitions, mobile drawers, or storage units. Things that are not solid or that have gaps, like pot plants or trolleys, or that create a new risk, such as from tripping or falling objects are to be avoided. If a barrier cannot be used, additional space between workers should be created by, for example, ensuring they have at least two empty desks either side of them.
  • Supply soap and water or appropriate hand sanitiser at convenient places and advise workers to wash their hands frequently. Clean your premises frequently, especially counters, door handles, tools and other surfaces that people touch often and provide good ventilation if possible.
  • Avoid excessive workload on cleaning staff by taking appropriate measures, such as assigning additional staff to the tasks and asking workers to leave their workspace tidy. Provide workers with tissues and waste bins lined with a plastic bag so that they can be emptied without contacting the contents.
  • If you have identified a risk of infection despite having applied all feasible safety measures, then provide all necessary PPE. It is important to train workers in correct use of PPE, ensuring that they follow the guidance available on use of facemasks and gloves.
  • Place posters that encourage staying home when sick, cough and sneeze etiquette, and hand hygiene at the entrance to the workplace and in other areas where they will be seen.
  • Facilitate workers’ use of individual rather than collective transport, for example by making available car parking or a place for storing bicycles securely, and encouraging workers to walk to work, if possible.
  • Put in place policies on flexible leave and remote working to limit presence at the workplace, when needed.
  • If close contact is unavoidable, keep it to less than 15 minutes. Reduce contact between different parts of your business at the start and end of shifts. Arrange the timing of meal breaks to reduce the number of people sharing a cafeteria, staff room or kitchen. Ensure there is only one worker at a time in bathrooms and changing rooms. Place a sign on the main door indicating when one of the toilets is in use to ensure that only one person at a time enters. Organise shifts to take account of cleaning and sanitation tasks.

Can employers request or require information from an employee about potential or actual exposure to the virus?

The question of whether an employee can be asked to sign a declaration about where they have been, their exposure to the virus, or be required to provide information to an employer in order for the employer to provide confirmation to a customer sits firmly at the nexus between data privacy and employment.

Any such data must also be processed in line with the applicable privacy requirements. Information about an employee’s health (such as whether the individual has been diagnosed with the virus or is suffering from any symptoms) is sensitive personal data and the information is complex from a European data privacy perspective. There is a significant difference in how sensitive personal data can be processed in different countries, so the appropriate legal basis will change country to country.

Information on an employee’s whereabouts and, thus potential exposure to COVID-19, however, does not necessarily constitute sensitive personal data.

In Sweden, employers may process personal data relating to employees where such processing of personal data is necessary for, inter alia, (i) compliance with a legal obligation to which the employer is subject, (ii) protecting the vital interest of the data subject or another natural person, or (iii) a legitimate business interest. It is our assessment that the above provides a legal basis for the employer to act and process the personal data needed in order to take proactive measures to avoid the spread of COVID-19. Further, employees’ loyalty obligations towards their employer ,the interest of avoiding further infection and protecting the health and safety of colleagues and customers will prevail over the individual’s interest to protect their personal data. Hence, our assessment is that employees in Sweden are obliged to provide information to avoid further infection.

Ultimately, the position regarding European data privacy rules and how they impact information relating to COVID-19 is currently unclear. National governments are considering whether emergency legislation may be required, particularly if the situation escalates. The position will need to be kept under review as the situation evolves and further guidance becomes available.

Tests for phased return to work plan

Employers recognize that medical checks and other testing and screening programs will be critical to any successful return to the workplace. In the U.S., as addressed in Part Two of this series, the CDC, the EEOC and others have provided guidance to employers wishing to conduct body temperature checks and other limited medical inquiries of their employees during the COVID-19 pandemic without violating anti-discrimination rules. Similar considerations will apply internationally, particularly in relation to those with secondary health issues who may have protections under applicable law as disabled workers.

 

Diagnostic testing will engage a range of other relevant regulatory considerations regarding use of approved medical tests, and reporting of notifiable diseases to local health authorities (a duty generally imposed on any third party medical professional retained by employers to conduct tests). Once possessed of relevant health data, employers may wish to develop procedures for workforce contact-tracing if an employee tests positive for COVID-19 and has been in contact with others in the workplace, and this, too, will impact privacy regulations. Employers should review relevant regulatory requirements in any jurisdiction where diagnostic testing will occur.

 

Any screening or tracking initiatives should be implemented in coordination with any internal privacy officers, HR, and compliance teams. Employers should consider adopting a separate COVID-19 influenced health and safety policy, with employees from these teams appointed to oversee the implementation of health and safety measures, share management thinking with employees, and pass employee feedback to management. Again, employee representatives might need to be informed/consulted with respect to any new policies impacting working practices—particularly in the Netherlands or Germany, where works councils have express authority to engage on such issues.

What Can Employers Ask Employees in regards of Symptoms During the Pandemic?

Employers recognize that medical checks and other testing and screening programs will be critical to any successful return to the workplace. In the U.S., as addressed in Part Two of this series, the CDC, the EEOC and others have provided guidance to employers wishing to conduct body temperature checks and other limited medical inquiries of their employees during the COVID-19 pandemic without violating anti discrimination rules. Similar considerations will apply internationally, particularly in relation to those with secondary health issues who may have protections under applicable law as disabled workers.

 

Employers are permitted to ask employees whether they are experiencing any COVID-19 symptoms, such as a fever, chills, cough, shortness of breath, body aches, sore throat, or other symptoms identified by the CDC or other public health authorities. Employers may require that employees answer questions or provide certifications concerning their experience of any COVID-19 symptoms or their exposure to individuals with confirmed cases. Employers may do this on a daily basis or at other intervals, as well as when an employee calls in sick, and must maintain information as a confidential medical record.

 

Some jurisdictions have released guidance to employers wanting to administrate COVID-19 testing of their employees before permitting them back to the workplace. They advise employers to make sure that the tests that are being used are accurate and that employers should review guidance from the FDA, CDC or other public health authorities to help identify what tests are considered safe and accurate . Further, the agency emphasize the meaning of different tests and their results e.g. that a positive test result to have an ongoing infection does not mean that person can’t get infected again. Employers should also generally observe the best practices cited with respect to temperature checks, above, with any diagnostic testing.

Return to work plan template

The COVID-19 Response Plan details the policies and practices necessary for the employer to follow in order to meet the Government’s ‘Return to Work Safely Protocol’ and to prevent the spread of COVID-19 in the workplace.
The plan will give an overview of key areas that employers must address to ensure compliance with the protocol and to minimise the risk to workers and others. All workplaces, including those with customer-facing interaction or areas where workers share a workplace, are required to develop a plan and the use of this guidance and associated checklists will help in this.