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Coronavirus – Returning to work after lockdown – Global

  • Global
  • Coronavirus - Workforce issues
  • Employment law

28-04-2020

On 15 April 2020 the European Commission set out a European ‘roadmap’ designed to manage the 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. In France, it is currently expected that the restrictions will start to be lifted from 11 May 2020.

In other parts of the world, there are also signs of a tentative recovery and relaxation of lockdown. In Hong Kong, the easing of lockdown measures was applied some weeks ago and in mainland China, a staged return to work has been implemented. In Shanghai, around 90% of businesses are ‘back at work’, although cinemas and theatres remain closed. The easing of lockdown measures inevitably saw some new cases of COVID-19, with Hong Kong seeing a spike in the numbers infected through people returning to Hong Kong.

Some jurisdictions have started to implement preventative measures for the return to work. In China there are requirements for companies to undergo strict approval processes (including stringent health and safety tests) in order to re-open their businesses. In Germany the Federal Cabinet has adopted additional occupational safety standards. It has been emphasised that state authorities will randomly check compliance with the rules and, if necessary, impose fines in cases of non-compliance. In Qatar, the Ministry of Administrative Development, Labor and Social Affairs has also adopted additional preventive measures, with almost 1,500 inspections being conducted in order to check compliance with applicable laws and regulations related to public health and safety.

So, what can we expect in a changed working environment as companies begin to resume operations once lockdown restrictions are lifted? Will the laws in each country be compromised by any of the measures taken by employers to ensure the health and safety of returning workers? Will the tensions between safety and privacy be resolved?

Technology, safety and remote working

Remote working will still be encouraged for some time after initial restrictions are lifted. Indeed, in Hong Kong, government workers who had returned to the workplace resumed working from home following the resulting spike in COVID-19 cases. Further, companies having seen the benefits that such arrangements can have are likely to be more amenable in the future to more flexible working arrangements.

Remote working, however, has received mixed reviews. The first issue is of course that not all businesses are able to facilitate remote working. For those that can, some workers have embraced the opportunity to spend more time at home and less time travelling, with some companies reporting that this has resulted in increased productivity, although it is unclear whether this is as a result of greater efficiency or increased time working. Other workers have complained about the lack of a clear demarcation between home life and work and a consequent increase in stress.

Even before COVID-19 transformed the way in which many employees work, work-life balance had taken on an increasingly global significance. Studies consistently highlighted the commercial costs to businesses of not getting the balance right, with sick or injured employees and impacted productivity. This is a recognised risk in light of an “always available” culture and advances in technology meaning that employees are more accessible than ever. Benoit Hamon of the French National Assembly (2016) commented “Employees physically leave the office, but they do not leave their work. They remain attached by a kind of electronic leash – like a dog. The texts, the messages, the emails – they colonise the life of the individual to the point where he or she eventually breaks down”. Some countries have legislated to ensure time away from work and the “right to disconnect”. For others, the revolutionised working landscape may present an ideal opportunity to review working arrangements more generally and focus on the wider aspect of work-life balance.

How can employers at short notice ensure a safe working environment at home? Given the speed at which lockdowns were implemented, the vast majority will not have been able to facilitate this. Securing a safe working environment equivalent to that found in the workplace will often require extensive checks of equipment and the working environment and the adjustment or replacement of work equipment. Pertinently, many employees would resent the intrusion into their home environment and feel that questions about their home are an unwarranted breach of privacy. This is particularly likely to be the case for those jurisdictions where health and safety obligations are onerous and rigorous checks of the home are required.

Aside from privacy issues associated with ensuring a safe work environment, individuals around the world continue to be concerned about privacy issues more generally, particularly around the use of electronic information and digital platforms. This was highlighted recently when many individuals in France received a text message reminding them of the safety instructions to be applied to combat the spread of COVID-19, which resulted in questions with regard to the protection of their personal data.

Further, concerns have been raised about the security of certain digital platforms potentially compromising the privacy of users. Whilst the use of such systems is often essential for business continuity, their use does pose risk to employers, particularly where such systems are required to be used by the employer. Complex issues of liability may arise where personal information is processed in connection with the use of such systems and misused as a result. From a European data protection perspective, employer organisations will likely be controller of the relevant personal data and therefore liable for any consequent data protection breaches. As a result, some companies have taken pre-emptive steps by conducting more rigorous due diligence on any new system/platform providers engaged to facilitate remote working, to help ensure they implement appropriate technical and organisational measures to meet the GDPR’s standards of personal data protection, or instructing staff not to use certain digital platforms during the pandemic altogether.

Coronavirus testing and contact tracking

In many jurisdictions, identifying and tracing individuals infected by COVID-19 has been seen as essential to controlling and seeking to overtake the pace of the spread of the infection and relaxing lockdown measures. In many locations where employees are returning to work, screening is taking place at the workplace through, for example, temperature testing or questioning, to check for any symptoms of COVID-19 and identify potential infection.

Mobile contact tracing apps have been used in some countries, with varying levels of success to date. Last month in Singapore, for example, the government rolled out a contact tracing app, TraceTogether, which is able to track the distance between smartphones and the duration of interactions, making tracing and identification of COVID-19 risk more accurate. In China, the relaxation of lockdown measures has been accompanied by the use of an app which indicates COVID-19 risk status. By answering a set of standard questions and analysing location data, the app gives a colour coding corresponding to health status and risk. India’s contact-tracing app, Aarogya Setu, has been promoted extensively, including by way of an address to the nation by India’s prime minister. With over 50 million downloads, it is reported to dominate the market. However, data privacy concerns have been raised over its collection of sensitive data.

Ursula von der Leyen, President of the European Commission, has urged a pan-European approach for COVID-19 mobile apps in order to ensure that virus-tracking digital tools are used safely and effectively. She has also urged widespread testing as a precondition for lifting social distancing measures in the future and for contact tracing applications to work. Indeed, the E.U. recommends making the apps interoperable with a recommendation that a single app should be developed. Nonetheless, different apps have already been launched within E.U. member states, such as in Italy, the Czech Republic and Austria, with other jurisdictions such as France, Switzerland and Germany making clear that they are also intending to do so. This is also reflected in jurisdictions outside the E.U, for example, in Australia.

All this makes sense, but it does give rise to issues of data protection and privacy. The European Data Protection Board and European Data Protection Supervisor have both issued guidance and commentary on the importance of ensuring that any mobile apps comply with applicable data protection and privacy laws, including by (for example): protecting the confidentiality of communications; anonymising and aggregating data to the extent possible; ensuring technical security measures are implemented; avoiding processing data on the movements of individuals; deleting data promptly after the pandemic is under control; being transparent with individuals; and using privacy settings and controls effectively to help enhance individuals’ trust in the apps.

In addition, on a related note, the U.K.’s Information Commissioner’s Office (ICO) has published a formal opinion on a recently announced joint initiative to enable the use of Bluetooth technology to help governments and public health authorities reduce the spread of the virus. A recent blog post by the ICO also discusses the importance of following data protection by design and default principles into the development of any apps.

Contact tracing apps will only be effective if they are widely adopted and will therefore require the buy-in of individuals being willing to use them. It seems likely that unless individuals are reassured that apps will not unreasonably compromise their privacy and there is transparency around how data will be used, the effectiveness of such measures may be compromised. It is clearly in employers’ interests to protect the health and safety of its workers and such apps offer an additional way of achieving this. Employers wishing to use such apps will need to carefully consider their compliance with applicable data protection laws in order to secure the trust of their employees over their use. This will require employers to carry out data protection impact assessments to work through what compliance steps are required.

The legality of health testing more generally, including in the workplace through, for example, temperature testing or questioning, varies by jurisdiction. Often, testing will not identify individuals or the data collated will be anonymised and aggregated, meaning that there may be no data protection issue. An example of this is in Hong Kong, where it is common practice to use heat-sensitive cameras at the entrances of buildings. However, testing within the workplace will often by its nature identify individuals and therefore lead to data protection issues. Further, data privacy issues could arise if data is recorded to justify any action in response to testing, for example, the denial of access to the workplace.

Antibody testing is also an area of increasing interest for employers. After all, if return to work screenings can identify those who may be immune to the virus, the “immunity passport” indicating a positive result will allow businesses to get back to normal more quickly. However, such testing has raised concerns over accuracy, particularly for those who are immunocompromised, together with factors such as duration of immunity and the presence of different strains of COVID-19. The tests may not offer the level of security hoped for by employers and may result in additional measures being necessary to protect the workforce. Moral and data privacy issues also arise with such an invasive form of testing. Nonetheless, many countries are developing antibody tests for general use. Giancarlo Maria Liumbruno, the director-general of the Italian National Blood Center, stated that it intends to have an antibodies blood test approved for use by the end of April. It will be interesting to see how many other jurisdictions follow suit.

In the U.K., the ICO has stated that it is there to help organisations and that a proportionate approach should be adopted with regard to data protection practices during the COVID-19 crisis. Whilst this statement (issued in a blog post) offers some comfort, assessing proportionality is challenging practically as it can only be done on a case by case basis – deploying tools such as data protection impact assessments will assist with the exercise, but do carry with them an inherent impact on timescales and resource. So far as health testing for COVID-19 symptoms is concerned, the ICO is silent, save to say that employers may share employees' health information with authorities for public health purposes.

There is also a tension between the often stricter data protection rights of workers in Europe when compared with the rest of the world – due to, for example, the existence of works councils. Employers will need to consider whether the testing of employees complies with local laws and what the approach of the enforcement agencies is likely to be. For multinational employers, this is likely to result in a number of different practices globally.

In some countries, pre-screening (such as taking an employee’s temperature and assessing symptoms) is permissible, subject to consent. In Australia, approval from the Health and Safety authority is required before an employee’s temperature may be taken. In Mexico, a privacy notice should be issued to employees if the results of the checks will be stored or disclosed alongside the name of the employee.

Social distancing and workspaces

Whilst the virus continues to be present and employers are on notice of the workplace risks, prudent employers will take pre-emptive measures. Further, employees returning to work will want to feel confident that their employer has put in place appropriate steps to protect their health and safety. Maintaining employees’ trust and confidence during this time through effective planning will be key to ensuring a smooth transition back into the workplace.

It is likely that many employers will put in place social distancing rules when workers start to return to work. A radical re-think of the working environment is therefore likely to be necessary to ensure that cases of COVID-19 are not spread within the workplace. Employers may need to erect barriers between workspaces in open plan offices where employees work cheek-by-jowl or separate employees out so that there is a distance of 2m between them. The European Commission has recommended that not all personnel should be allowed back to work at the same time. There may therefore be a system of cohorts of staff who work alternate shifts to enable social distancing.

Some employers have been considering more inventive ways of ensuring social distancing can be adhered to within the workplace, for example wristbands which vibrate when employees come within six feet of each other. Whether the use of any such devices will become part of the personal protective equipment employers can insist that employees wear remains to be seen. Indeed, it is uncertain how the courts and tribunals will view action taken against employees if they refuse to comply.

Consideration should also be given to limiting the number of employees in confined spaces between workstations, for example in lifts/elevators and communal areas, to observe social distancing. Where workers travel for work, this may extend to travel arrangements, for example limiting the number of individuals in a company vehicle. These adjustments are likely to impact significantly on the working environment that existed pre-COVID-19 and effective planning will be required to ensure that they can be integrated smoothly and effectively enforced. For example, limiting numbers using lifts/elevators and communal areas is likely to create logjams at either end of the working day if not implemented in a considered manner.

Masks and hand sanitisers

As noted, workers can expect enhanced health and safety measures when they return to the workplace, including greater availability of hand sanitisers (and encouragement to use these) and deep cleans of their workspaces.

Masks are a more sensitive and cultural issue. It is common practice (even before COVID-19) for people in Hong Kong and mainland China to wear face masks to limit the spread of disease and respect the health of work colleagues. Elsewhere, face masks were rarely seen but are now increasingly worn as a safety precaution.

The health authorities have been divided about the efficacy of face masks. The World Health Organisation has said that masks present no protection against COVID-19 and should be reserved for healthcare workers, but it is clear that some individuals feel more reassured wearing them. In Australia masks are generally not being worn, to preserve the stocks of masks available to the medical profession. Similarly, in the UK, masks have to date not been worn by the general public, with the advice from the UK government being that face masks offer no protection against COVID-19. However, the UK government has more recently said that the guidance is under review and will change if the scientific evidence warrants it.

What will employers’ policies be? We expect that policies may range along a cultural divide, with masks being mandatory in some jurisdictions, accepted practice in others and potentially ‘frowned upon’ in some.

Self-isolating

Rules on self-isolation vary across the world. In Italy and the Netherlands, for example, an employee must self-isolate at home for 14 days if members of the household exhibit symptoms of COVID-19. Employers must ensure that domestic laws and guidance are taken into account when setting out rules about a return to work. When employees self-isolate, what does local legislation say about payment? Does self-isolation qualify for any form of sick pay? What if the worker insists on coming to work, fearful of a further loss of pay?

Policies and procedures and disciplinary issues

As employees return to work, strict conditions will need to be in place to ensure their own safety and the safety of others, taking account of local law requirements. What if an employee refuses to return to work because they believe the measures in place do not adequately protect them? The steps that can be taken are likely to depend on the basis of such refusal, which will in turn throw the spotlight on what preventative actions, if any, the employer has taken.

Additional considerations will also need to be made for vulnerable individuals, including those who are more susceptible to infection due to a disability. In the US, the Americans with Disabilities Act prohibits disability-related inquiries or medical examinations of current employees, unless the employer reasonably and objectively believes the medical condition impairs the employees’ ability to perform the job functions and poses a direct threat to the workforce. In the U.K., discrimination legislation provides additional protection for employees who are disabled within the meaning of the Equality Act, including that reasonable adjustments are made for disabled persons in certain circumstances to avoid any substantial disadvantage. Employers will therefore need to proceed with caution, ensuring that more vulnerable employees are adequately protected.

Employers will need to ensure that COVID-19 policies and procedures and risk assessments are robust before the resumption of work in the workplace, ensuring the safety of workers and others visiting the premises. For example, what should happen if an employee falls sick whilst at work? What if an employee does not disclose that a member of the household is suffering from COVID-19? What should be the best practices for protecting employees whilst maintaining a continuity of operations? Clear policies should be established addressing these issues and employees should clearly understand what these new policies and practices are. To this end, training may be necessary.

Further, thought should be given as to how breaches of these policies should be treated and with what level of severity. Given that there is no precedent, say, for a rule on social distancing, how should an employer ‘punish’ a group of employees who gather together for a coffee in the office? Disciplinary procedures should be clear on this point and any sanctions imposed should be proportionate and consistent across the workforce.

Global policies

When a phased return to work looks imminent, employers should carefully plan the return to work phase and consider what agreements they need to reach with employees about any revised working arrangements. Will remote working become part of the new working landscape; with hot-desking in the workplace and some days worked from home? What additional risk assessments and safety documentation and guidance will be required? Additionally, is the working environment safe, can employees immediately return or are surveys, inspections and remedial works required before re-commission of the premises?

Given the variations in legal requirements across jurisdictions, an entirely globally consistent approach on all matters concerning return to work is unlikely to be achievable. Requirements that are recommended/permissible in some countries may not be in others. Individuals considered vulnerable persons or essential workers in some jurisdictions will not be in others. Some jurisdictions will require union/works council/ employee representative involvement in certain matters, where others will not.

With the added element of each jurisdiction having different timetables and nuanced responses to release from lockdown, tailored approaches for each location is likely to be a necessity for multi-national employers. An approach that seeks to be too global, is likely to be problematic in practice and hinder a smooth transition back to the “new norm”. However, it is certainly worth global employers considering what their company standards and approach should be regarding returning to work, to help achieve a consistent employee approach wherever possible.

It is clear that when the workforce starts to return to the workplace, it will face a very altered panorama. Flexibility will be required on all sides to ensure that the new working practices are implemented smoothly. It will be interesting to see how the tension between health and safety on one side and privacy and data protection on the other will be resolved. In the meantime, all eyes will be on those countries that are making the first steps towards opening up and a return to work.

After coronavirus - practical tips - planning for a return to work

Effective planning is key to ensuring a smooth transition back to work and the protection of employees. Set out below is a summary of key steps for multi-national employers to consider :

  • core planning and implementation team - create a senior team to plan the return to work transition, including monitoring government guidance and implementing measures
  • assess existing models – consider whether the existing employment model remains appropriate, including roles, hours, location, flexible working, terms and conditions of employment, policies etc. Consider the legal position of any revised working arrangements. Is consent required and/or should there be any process of information and consultation? Consider related issues such as remote working and work-life balance
  • risk assessments - carry out and implement risk assessments to comply with the employer’s duty of care as employees return to work. Ensure that such assessments and implementation measures are tailored to the business and working environment and take account of local legal requirements/guidance, including on social distancing, the provision of PPE and any additional measures for vulnerable workers. Risk assessments should also extend to conducting data protection impact assessments where proposed solutions involve the processing of personal data
  • personal protective equipment - where PPE is to be provided, ensure it meets local health and safety standards, is suitable for the associated work activity, fits correctly and that sufficient stock can be maintained
  • screening measures - check the legality of measures such as temperature testing, health screening, contact-tracing or antibody tests. Where these are to be used, ensure appropriate related-processes are in place, including training, security of data, procedures for denying entry to the workplace based on results and reporting
  • insurance - Check insurance policies to verify the extent of cover. Is the employer covered if an employee contracts COVID-19 on a return to the workplace?
  • communications planning - devise an appropriate communications plan to keep staff fully informed and to ensure staff are aware of disinfection, reporting and self-isolation requirements
  • COVID-19 cases at work - ask employees to report if they are ill or at particular risk of infection; inform them of the steps they should then take; ensure appropriate procedures for sending employees home
  • training - train managers on the employer’s measures and provide them with information, training and support to deal with staff queries and concerns and enforcement of policies. Consider if refresher training on risk assessments and work instructions is required for the workforce
  • return to work plans - consider the fair implementation of cohort systems to allow staff to work alternate shifts and/or part of the workforce to continue to work from home as part of a phased return to the workplace to enable social distancing. Consider if this approach gives rise to lone working arrangements and whether additional risk assessment, equipment and training is required
  • employee pay - consider the employer’s stance on pay during any continued absence and requests to work flexibly, including where workers refuse to return to the workplace due to fear of infection
  • plan for health and safety inspections – ensure robust evidence of compliance can be readily provided of COVID-19 measures in the event of health and safety inspections. Establish a procedure for responding to any such audits
  • review of premises – prior to allowing the workforce to return to site, undertake a site survey to ensure the working environment is safe. This will include, alongside a general evaluation of the site, a review of fire safety measures, water systems (to manage the risk of Legionella bacteria) and statutory inspections on certain items of equipment and machinery (e.g. lifts) which may have expired during the closure of business operations
  • wellbeing and welfare - consider if additional support is required for the workforce in view of any changes arising in the re-start of business operations
  • limit legal risk in application of measures - ensure any measures adopted are lawful, reasonable, fair and applied consistently
  • looking ahead – consider contingency plans for any future recurrence of COVID-19 or a similar crisis, taking learnings from the current COVID-19 experience

Please contact the following partners if you require advice and assistance:

Global:

Diane Gilhooley
Hannah Wilkins
Elizabeth Graves
Constanze Moorhouse

US:

Scott McLaughlin
Michael Woodson
Michael Hepburn

Marlene Williams

Asia:

Jennifer Van Dale 
Jack Cai

Europe:

Frank Achilles
Deborah Attali
Valentina Pomares
Ingrid van Berkel
Wijnand Blom

For more information contact

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