193: Returning to work? Working safely in offices during COVID-19

The government issued guidelines on 11 May 2020 for employers, employees and the self-employed on how to work safely in offices during COVID-19. The emphasis for office workers is that, for the foreseeable future, they should still be working from home wherever possible.

For those that are unable to work from home, the guidelines cover various different workplace settings that are permitted. The guidance is also useful for employers thinking about planning ahead for the future when they are able to open up their offices. It is however clear that workers should not be forced into an unsafe environment.

The five key points that can be taken away from the guidelines are:

• all reasonable steps should be taken by employers to help people work from home wherever possible;
• employers must carry out a COVID-19 risk assessment, in consultation with trade unions. Employers with over 50 employees should publish the results of risk assessments on their website;
• employees must maintain two metres social distancing wherever possible eg by re-designing workspaces, creating one way walk-throughs, using floor markings and changing layouts in office spaces;
• where people cannot be two metres apart, employers must manage the transmission risk eg by putting up barriers and screens in shared spaces, and creating shift patterns to minimise contact; and
• the reinforcement of cleaning processes is important. Offices should be cleaned more frequently and attention must be paid to high contact objects like door handles and keyboards. Employers must provide hand washing facilities or hand sanitisers at entry and exit point.

One of the key focuses seems to be on preparing a risk assessment so that everyone can manage the risk of COVID-19. Employers have a legal responsibility to protect workers and others from risk to their health and safety, and must make sure that the risk assessment for business addresses all risks.

A risk assessment is not about creating huge amounts of paperwork, but rather about identifying sensible measures to control the risks in the workplace. Employers also have a duty to consult their employees on health and safety by listening and talking to them about their work and how to manage risks from COVID-19.

Employers must also consult with a health and safety representative selected by a recognised trade union or, if there isn’t one, a representative chosen by workers. The results of a risk assessment should be shared with the workforce. Employers with over 50 workers should publish the results on its website.

Notwithstanding the legislation and guidance relating to COVID-19, employers must take all necessary steps to protect their employees. The government guidance also suggests that it is good practice for employers to ensure that:

• everyone is updated on actions being taken to reduce risks of exposure to COVID-19 in the workplace;
• employees who are in a vulnerable group are strongly advised to follow social distancing guidance;
• employees who are in an extremely vulnerable group (and should be shielded) are allowed to stay at home;
• employee contact details and emergency contact details are kept up-to-date;
• managers are able to spot symptoms of COVID-19 and are clear on any relevant processes and procedures, including sickness reporting and sick pay;
• there are appropriate places to wash hands with soap and water for 20 seconds, and employees must be encouraged to do so regularly;
• hand sanitiser and tissues are available for employees;
• spaces in offices are optimised to allow social distancing, wherever possible; and
• there are posters and leaflets in the workplace reminding employees not to attend work if they have a fever or cough, with advice to avoid touching their eyes, nose and mouth with unwashed hands.

How these changes may work with commercial leases

Before offices can be opened again, physical alterations will be required to current workspaces. Changes to work stations, new screens, barriers, partitioning and floor markings are unlikely to require landlord’s consent under a commercial lease. However, many office buildings include common areas, such as a reception, lobby, lifts and stairs. Landlords and tenants will need to consider whether conditions can be imposed or agreed for the use of these common areas to preserve social distancing.

Parties will need to ask the question about what is a reasonable amount of time allowed for a landlord to make these changes to the building before opening again, in order to permit access, particularly on multi let offices. Tenants may have already have agreed rent holidays with landlords, but there may be more pressure for rent concession requests and demands for access where there is some perceived discrepancy between a landlord’s stance on maintaining closure and the governments unclear back to work message.

The requirement for buildings to be cleaned more frequently to tackle the spread of COVID-19, including deep cleans, are likely to be recoverable by the landlord through the service charge. Landlords and tenants will need to agree who should be responsible for any additional hygiene and other services that need to be provided by the landlord, which would usually be included in the service charge.

The government has suggested that workers stagger their times of work, to minimise contact between individuals. Landlords and tenants will need to consider whether agreed hours of use need to be extended and other services re-scheduled.

Most commercial leases contain a covenant for the tenant to comply with regulations or recommendations made by public authorities or by insurers. In the case of conflict between regulations and other terms of the lease (such as a keep open clause) the statutory requirements covenant will usually take precedence.

Commercial leases may also allow landlords to impose other measures on use of the property in line with the principles of good estate management. The parties should consider whether any measures, such as the mandatory use of masks within the common parts of the building, should be agreed for the mutual benefit of all.

These amendments may need to be documented in a side letter to the lease, or even in a deed of variation if these measures are to remain a permanent change to our working lives.