Returning to the Workplace – an Employer’s Guide
After nearly a year and a half of working from home during the Covid-19 pandemic, employees are finally starting to return to the workplace. From 29 September, there is no longer any recommendation from The Swedish Public Health Agency that employees should work from home. In the UK, government guidance that employees should work from home was lifted in July (August in Scotland) but employers were recommended to facilitate a gradual return to the workplace over the summer.
In this employer’s guide, we at Eversheds Sutherland have answered some of the most common questions by our clients in Sweden and the UK that are planning for the employees’ return to the workplace.
Can employees be required to return to the workplace?
Sweden and UK: Yes. It is the employer that decides if and to what extent employees should work from home and can require employees to return to the workplace if deemed safe from a work environment perspective, taking for example risk groups into consideration. However, if it has been agreed between the employer and the employee that the homeworking is a permanent arrangement, the employer cannot unilaterally decide to make the position office-based again (unless it has reserved the right to do so). However, UK employees with more than 26 weeks’ service have a statutory right to submit a flexible working request which can only be rejected on specified grounds. The UK government has announced plans to amend legislation to make this a day 1 employment right for all employees.
Can employers require employees to take the Covid-19 vaccine prior to returning to the workplace?
Sweden: Yes, in the short term and for work environment reasons, it is possible to require employees to take the vaccine as a condition for being allowed to return to the office. However, employees who do not take the vaccine must be allowed to work from home with pay if they choose not to take the vaccine. Further, this approach will likely not be possible on a long term (unless in exceptional cases and in certain lines of business), meaning that employers will eventually have to accept that employees who have chosen not to take the vaccine may return to the workplace. This is particularly important to avoid discrimination claims if an employee does not take the vaccine for reasons such as disability, religion/belief or pregnancy.
From a data privacy perspective, employers should not ask employees whether they have taken the vaccine since information on vaccination status may not be processed by the employer. Instead, employers should issue a general policy or instructions to the employees where it is
stated that only those who have taken the vaccine should enter the workplace. There would be no way of confirming that employees are adhering to this policy.
UK: Vaccination is mandatory for employees working in registered care homes (unless not recommended for individual medical reasons) and a government consultation is underway to extend these rules to frontline healthcare and other social care workers. It is unlikely that outside these high-risk settings vaccination can be imposed as a condition of return to the office in the short or long-term unless justified due to the risk of infection. The UK government has placed particular emphasis on the importance of testing in the workplace which is a less intrusive approach than mandating vaccine as a condition of work. However, the situation remains fluid and the legal landscape is likely to change over the coming 12 months.
What measures should employers take from a work environment perspective when employees return to the workplace?
Sweden and UK: Employers are generally required to undertake work environment risk assessments, in co-operation with the safety representative at the workplace, to establish whether there are any health and safety issues with the return. When the work environment risk assessment has been completed and it is established that it is safe for employees to return to the workplace, the employer should continuously be aware of any health and safety issues and try to limit the spread of the virus by, for example, taking the following measures:
1. If there are employees who belong to a risk group, these should be given particular consideration and be allowed to stay at home if deemed necessary, for example if they have not yet taken the vaccine.
2. Encourage employees to regularly wash their hand and use hand sanitizer.
3. Encourage employees to maintain social distance and avoid larger gatherings in the initial stage.
4. Ask employees to stay at home if they experience symptoms or otherwise suspect that they are infected.
In the UK, employees who have tested positive for Covid-19 following a polymerase chain reaction test or who are directed by the National Health Track and Trace Service to isolate (unless an exemption applies) or who are returning from an overseas country where quarantine rules apply must follow required isolation procedures.
Do we need to consult with any trade unions before allowing employees to return to the workplace?
Sweden: Employers that are bound by a collective bargaining agreement have a general obligation to initiate union consultations with the trade unions that are parties to the applicable collective bargaining agreement before a decision is made on significant changes in the business. Our assessment is, however, that a decision to allow employees to return to the workplace after the pandemic does not trigger an obligation to consult with any trade unions. Employers that are not bound by any collective bargaining agreement do not need to consult with any trade unions either, unless any trade unions that have members among the employees request for consultations on their own initiative.
UK: Employers must consult with health and safety representatives (including any recognised trade union) before returning employees to the workplace and in relation to any significant health and safety measures (e.g. before introducing workplace testing). Employers who do not recognise trade unions may need to appoint other health and safety representatives or involve employees directly in discussions about health and safety measures for returning to the workplace.
Can we require employees to take a Covid-19 test before returning to the workplace?
Sweden: Employers may issue general instructions to employees that they must take a Covid-19 test before returning to the workplace. However, from a data privacy perspective, no sensitive personal data in this regard may be processed by the employer, meaning that you may not ask employees to confirm their test result before entering the workplace. Hence, if general instructions to take a Covid-19 test are issued to the employees, there would be no way of confirming that employees are adhering to these instructions.
UK: The position is similar to Sweden except that test results can be processed by the employer where this is necessary for health and safety or public health reasons. The UK Information Commissioner’s Office (the data privacy authority in the UK) has published guidance for employers about processing test results and vaccination status data. Any employer seeking to introduce testing should have a policy and clearly communicate whether testing is encouraged or required and update fair processing notices to explain how any sensitive data will be handled.
Please reach out to us at Eversheds Sutherland in Sweden and the United Kingdom if you would like to learn more about the employers’ obligations when employees return to the workplace or if you need any other employment related legal advice.
Eversheds Sutherland Sweden
+46 (0) 8 545 322 88
Eversheds Sutherland United Kingdom
+44 122 344 3761