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Returning to Work During COVID-19 : Answering Your Questions

With many people returning to work this week, there has been no shortage of questions around employees rights during this difficult time. We have compiled some of the most common questions and answers below.
After the Prime Ministers speech on the 10th of May, who is entitled to go back to work?

People should continue to work from home wherever possible. If it is not possible for them to work from home and their workplace is open (e.g. if they work in food production, construction, manufacturing, logistics or distribution) they are expected to travel to work and attend the workplace.


I’m worried about contracting COVID-19 in my workplace, can I refuse to go back to work and still claim furlough pay?

It is the employer who claims wages via the Government’s Coronavirus Job Retention Scheme (or at least 80% of wages up to a maximum of £2,500). It is, therefore, up to the employer to decide which employees should be on furlough leave rather than it being a choice available to the employee. Employers should only furlough employees in appropriate circumstances in accordance with the Coronavirus Job Retention Scheme. If employees have concerns about contracting COVID-19 in the workplace, they should discuss these concerns with their manager/HR in order to get a better understanding of what health and safety measures are in place. BEIS have also issued sector relevant guidance to employers about the measures employers should be taking in the workplace in order to ensure/promote social distancing

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Do I need to go back to work even though I am currently caring for dependants?

If the workplace is open (and you cannot work from home) you will be expected to return even if you are caring for dependants and even though schools have not yet opened. However, anyone categorised as an essential worker will be able to send their children to school/nurseries as per the current arrangements. Dependants leave is available for emergency childcare but usually only for a short period, e.g. 2 days. If returning to work is very difficult, you can speak to your manager/HR about the possibility of taking a period of unpaid leave and/or holiday or agreeing a temporary flexible working arrangement (with hours which fit around childcare) whilst schools/nurseries are still closed.


Am I entitled to COVID-19 testing now that I am being asked to return to work?

You can apply for a test if you have symptoms (or live with someone who has symptoms) if (a) you have been asked to go back to the workplace because you cannot work from home or (b) you are classed by the Government as an “essential worker” (e.g. NHS staff, police, teachers, social workers, those involved in food production/sales).


I own a manufacturing/building company, do I have to send my employees back to work or is it up to my discretion?

The Government guidance states that sectors of the economy which are allowed to open should open and this includes manufacturing and construction. However, employers should bear in mind their obligations to ensure a safe working environment for employees and put in place appropriate H&S measures. BEIS has issued sector relevant guidance to employers about the measures employers should be taking in the workplace in order to ensure/promote social distancing

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In cases where demand for services or workflow has decreased and there is not enough work for the whole of your workforce, it is possible to keep or, indeed, put employees on furlough leave in appropriate circumstances (with their agreement) under the Government’s Corona Virus Job Retention Scheme.


If I can work from home, should my employer be asking me to return to work?

No, the current Government guidance states that if it is possible for you to work from home then you should continue to do so.


Can I take annual leave to avoid going back to work?

Yes, subject to getting approval from your employer in line with their policies and procedures and having sufficient holiday entitlement.


Do I need to go to work if I/a member of my household is classed as a vulnerable person and has received a 12-week isolation letter?

Employers have a duty of care towards employees and should, therefore, support any vulnerable employees who have been told to isolate for 12 weeks. If you and/or a member of your household is vulnerable yet you are being asked to go back to the workplace, you should discuss your concerns with your employer and try and agree on a way of working. For instance, it may be possible to agree home working arrangements, alternative duties which can be done from home, specific adjustments to the workplace to enable maximum isolation, a period of furlough leave (if appropriate) or unpaid leave.


I’m going back to work next week, how should I know what I should and shouldn’t be doing?

Where ever possible, you should continue to maintain social distancing measures. Your employer should also have in place appropriate health and safety measures and updated guidance on working practices during the Covid-19 pandemic (for instance, they may provide you with PPE or install glass protectors if your role is customer-facing). You should speak to your employer if the guidance is not clear or if you have any concerns about health and safety. BEIS has issued sector relevant guidance to employers about the measures employers should be taking in the workplace in order to ensure/promote social distancing.

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Do you have any further questions? Proelium Law is here to help you. We are continuing to work during this difficult period. Call or email us if you have an enquiry, we will call you back at a time convenient for you.

Sinead Keenan is a Consultant Solicitor at Proelium Law LLP specialising in employment law. Sinead has over 7 years experience working in private practice advising both companies and employees on a wide range of employment law matters.


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