Many companies are returning to their regular workplaces or are considering doing so in the near future. We are sharing recommendations on the main issues that employers should consider in order to ensure a smooth and successful transition back to their offices and to protect themselves from legal risks.
Re-evaluate the occupational health and safety of the workplace in order to ensure safe working conditions
COVID-19 has brought new risk factors such as biological and psychological-social hazards into focus in the workplace. This means that a new occupational risk assessment has to be carried out taking account of the new circumstances. If you feel that you are at a loss in carrying out the new risk assessment by yourself, contact your external legal services provider or your occupational health and safety service provider for assistance. You may also get help and guidance from the local health and labour authorities, who may have prepared guidelines for specific industries in light of COVID-19. Obtaining a meaningful outcome of an occupational risks assessment means having clear information on:
- What are the occupational risks related to COVID-19?
- What are the exact measures (e.g. personal protection equipment, rearranging the working environment, limiting the number of employees in the office) that need to be implemented considering the specific workplace? The list of required safety measures should be tailored to your company’s specifics.
Adapt the working environment
Companies may require their employees to return to offices only when all necessary COVID-19 safeguards are in place. This may require both making changes in work organization, as well as implementing new health and safety rules. You may have to introduce working in shifts or flexible starting and ending of working hours to keep physical contacts at a minimum, implement new rules on social distancing and employee-client meetings, establish new hygiene requirements, as well as limit the number of employees working at the same time in company premises, appoint a person responsible for work safety issues during COVID-19, provide employees with protective gear, and so on. It may happen that you have to re-organise workspaces and common areas or take other additional measures in order to observe all requirements. Be mindful of those employees belonging in high-risk groups, as well as those who may face the ‒ often invisible ‒ psychological-social hazards. Make decisions on returning to the workplace very carefully, having in mind that it may take additional financial and organisational resources. Remember that if you have not made the workplace safe, your employees have legal grounds to refuse to come to work.
Take necessary protective measures
Depending on the outcome of the company’s occupational risk assessment, you may have to implement collective or individual protective measures. This may include rearranging ways of working, setting up physical barriers, minimizing physical contact, as well as supplying employees with masks, respirators, gloves, disinfectants or other protective equipment.
In addition, consider how you can best protect your employees from psychological-social hazards. For example, you may introduce regular staff meetings at least once a week or regular one-to-one check-ins to understand and address your employees’ concerns, as well as use online employee wellbeing questionnaires to get the feeling of employees’ emotional status and psychological health. If necessary, arrange psychological help or coaching for those in need.
Familiarise employees with the new work organisation process and safety rules and provide them with necessary training
Employees must be properly informed about all new rules and procedures related to occupational health and also re-trained if necessary in the use of all protective measures.
To limit the company’s risk exposure, you should document the fact that employees were familiarised with the relevant policies (e.g. via electronic confirmation of receipt, or the employee’s signature on a familiarization list).
Prepare a plan for a COVID-19 diagnosis
We recommend preparing in advance for possible cases of your employees getting a COVID-19 diagnosis. The plan should clearly define the steps which must be taken once the diagnosis is reported, including disinfection of working premises, communicating with staff, possible temporary return to remote work, and the like. Remember that a COVID-19 diagnosis is sensitive personal data that as a general rule can be processed only with employee consent and to the minimal extent. So, special attention should be paid as to how and who processes diagnosis-related data and how this can be communicated to staff. Also, in case you plan to implement temperature screening or use of COVID-19 apps, assess their impact on employee privacy. Review existing employee privacy notices and internal data processing rules and if necessary update these, as well as obtain employee consents where needed.
Review remote working arrangements
If remote working remains an option, current remote working agreements and/or policies should be reviewed accordingly and adjusted, if needed. And if you did not have time to put necessary agreements and policies in place when the crisis forced you to request employees to work from home, formalize the documentation now. This is especially important in terms of when and how remote working arrangements can be ended and when and how employees would need to return to the workplace. Do not forget that the employer is also responsible for assessing the safety of the remote workplace (in Belarus – unless distant work is officially formalised and the employment contract does not provide otherwise).
In Belarus the law does not directly envisage partial remote work (i.e. working from home and at the employer’s premises from time to time, depending on the situation). So as soon as there is no need for remote working arrangements, employment agreements need to be changed back to the original terms.
Review employment contracts and internal policies
It may be that adapting the working environment and use of remote working also requires further changes in the employment contracts of individual employees, as well as in other internal policies than those merely pertaining to occupational health and safety. So, we recommend reviewing all employment-related documentation and determining whether any changes are needed in order to be able to implement the new work organisation process and safety rules. Be mindful that any changes to employment contracts can be made only on agreement with employees, unless the law says otherwise. Internal policies may be amended without employee consent, but may require an information and consultation procedure.
Prepare a plan of action in case an employee refuses to return to the workplace
Remote work is always voluntary and applying remote work is therefore possible by agreement between you and your employees. Ideally you would have agreed upon the terms and conditions of returning to work in the remote working agreement. But there may be situations when employees do not agree to return to the workplace, citing the situation with COVID-19. They may be concerned about their health and safety or have difficulties in arranging proper care for their children. As a rule, provided that the employer has ensured proper workplace safety, employees should not have grounds to refuse to return to work. While you may have grounds for disciplinary action, try to understand the employee’s concerns first and see if it may be possible to arrange their work otherwise. Remember that you may require employees to return to the workplace only if you ensure that all applicable COVID‑19 safeguards are implemented at the workplace and, where necessary, the employment contract is adjusted so as to reflect the actual workplace of the employee. Otherwise, employees may have grounds to refuse to come to the workplace or if they do but then become infected they potentially may have grounds to terminate their employment due to employer’s breach of duty or claim compensation for damage.
Be honest and transparent, as well as engage your employees
Before making any changes at the workplace or in ways of working, plan ahead and allow enough time to discuss the situation with your employees. Be honest and transparent and communicate in “human language” avoiding over-legalistic use of language. If necessary, prepare “Frequently Asked Questions” and other easily accessible information materials. Think how to best reach and engage your employees who work remotely. Do not forget that there might be legal requirements in terms of conducting information and consultation procedures either with your employees or their elected representatives (including occupational environment representatives).
Our international COVID-19 Task Force is at your disposal, should you need advice in any legal issues you are facing. More information and advice on COVID-19 related issues is available here.