| HR & EMPLOYMENT LAW
Jackie le Poidevin, Editor-in-Chief, HR Adviser |
6 Steps to Manage the Return to Work for Employees with Health Conditions
From 1 August, the Prime Minister has said that staff who have been shielding should return to work. This announcement, along with the further easing of lockdown from this weekend and the gradual reduction in furlough grants, means many employers are now planning how to get their employees with serious health conditions safely back to the workplace. Here, we look at how to manage this difficult process.
People who are extremely vulnerable to COVID-19 and at greatest risk of severe illness or death if they contract it, were advised to shield back in March. This originally meant not leaving their house at all except for medical reasons, although the guidance has recently been relaxed.
For these employees, your options have been to:
- Pay them statutory sick pay (SSP), which they have qualified for under the amended sick pay rules.
- Offer home working.
- Offer furlough leave.
What Should You Do Now?
From 1 August, employees will no longer be eligible for SSP on the grounds that they are shielding. However, this doesn’t mean that you can simply order these employees back to work on 1 August. These are some steps you should work through:
1. Offer Home Working if Possible
For all employees, the starting point remains that they should work from home if their role allows.
2. Make Your Workplace ‘COVID-secure’
The Government has issued sector-specific guidance on how to do this here.
3. Assess the Risks
Before you reopen your workplace, you must carry out a general risk assessment and remove the risks that you identify or reduce them to the lowest possible level. On top of this, you should also carry out individual risk assessments for vulnerable staff to identify any specific issues.
If you fail to do this, you could, in the worst case, face prosecution by the Health and Safety Executive. An employee may also be entitled to refuse to return to work because they reasonably believe they are in serious and imminent danger.
4. Make Reasonable Adjustments
An extremely vulnerable employee is likely to be classed as disabled. To avoid a discrimination claim, you must therefore make any adjustments that it’s reasonable to make so they don’t face a disadvantage while at work. Changes might include:
- Reassigning the employee to a lower-risk role with their consent e.g. a non-customer-facing position or a role they can do from home.
- Providing a separate workspace.
- Changing the employee’s start and finish times so they can travel off peak.5. Listen to Concerns
The Government’s advice is as follows:
‘We recognise that individuals unable to work from home may feel uncertain about returning to work. Mindful of this, the Government is asking employers to ease the transition for their clinically extremely vulnerable employees, ensuring that robust measures are put in place for those currently shielding to return to work when they are able to do so.’
‘For anyone concerned about returning to work once the guidance has eased, we recommend they speak with their employer to understand their specific policies in relation to COVID-19. We advise they discuss their situation, agree a plan for returning to work and adjustments that may be needed before they return.’
6. Extend the Employee’s Absence if Necessary
If you can’t reach an agreement with the employee or it’s not safe for them to return, you have various options:
- If their GP signs them off as unfit to work, you should pay SSP (or company sick pay, if you offer this).
- If the employee has already been furloughed for at least 3 weeks before 30 June, you can consider extending furlough to 31 October at the latest, when the scheme ends.
- If the employee doesn’t have a fit note but doesn’t feel safe to return despite the workplace being ‘COVID secure’, you can offer unpaid leave.
- If the employee is willing and able to return but you consider that it’s not safe, it’s likely you’ll have to continue to pay the employee in full.
| PAYROLL
Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
Changes to the Claim Period Rules Under the Coronavirus Job retention Scheme
The second and final phase of the Coronavirus Job Retention Scheme (CJRS) started on 1 July 2020 and runs until the scheme comes to an end on 31 October 2020. As well as the introduction of flexible furloughing and a gradual reduction in the support provided to employers under the scheme, changes are also made to the claim period rules.
The claim period is the days for which an employer is claiming a grant under the scheme. For periods that end on before 1 June 2020, there was no maximum length for a claim period. However, claims for periods that start on or after 1 July 2020 must start and end in the same calendar month. This is because the amount that the employer under the scheme is different each month during the final phase of the scheme.
Claims for pay periods ending on or before 30 June 2020 must be made by 31 July 2020. Claims for periods after 30 June 2020 can be made from 1 July 2020.
Only One Claim Per Period
Where possible, the employer should match the period of the claim to the date on which they process their payroll. It is important to note that the employer can only make one claim for any period and that claim must include all employees who are on furlough or who are flexibly furloughed for the period; it is not possible to make separate claims in respect of individual employees.
Where a subsequent claim is made, this cannot overlap with a previous claim period. So, if a claim is made for 3 May to 2 June, the next claim period must start on or after 3 June.
Pay Period Spans More than 1 Calendar Month
Claims for periods that start on or after 1 July 2020 must start and end in the same calendar month. This means that where a pay period spans 2 calendar months, separate claims must be made for the days falling in each month.
Where a pay period spans 30 June/1 July, it must also be split. The claim for the period ending on 30 June must be made by 31 July.
Example
An employer pays staff monthly on the 10th of the month. The pay period for which a claim is made runs from 11 June 2020 to 10 July 2020. As the pay period falls in 2 calendar months, it must be split.
The days that fall in June (11 June 2020 to 30 June 2020) comprise one claim, which must be made by 30 June 2020.
The days that fall in July in this pay period can either form a separate claim (1 July 2020 to 10 July 2020) or can be combined with a claim for the July days that fall within the next pay period (11 July 2020 to 31 July 2020) so that a single claim is made for the whole of July.
Length of Claim Period
Claims in relation to periods starting on or after 1 July 2020 must be at least 7 days long. The exception to this rule is where the pay period spans two calendar months and has to be split and the days at the end of one calendar month or the start of the next calendar month are less than seven days.
Example
An employer pays employees weekly each Friday. A pay period runs from 29 August to 4 September. As the claim spans 2 calendar months, it must be split as follows:
- 29 August to 31 August (3 days)
- 1 September to 4 September (4 days)
Each period is less than 7 days but this is permitted as the pay period of 7 days spans two calendar months.
When Can a Claim be Made?
Claims can be made before the payroll is processed and up to 14 days before the end of the claim period. Payments are made within 6 working days of making the claim. Employers should make the claim sufficiently in advance of their pay day to ensure that they have the money available to pay employees on their usual pay day.
However, a claim cannot be made in respect of employees who are flexibly furloughed – an option from 1 July onwards – until the employer knows with certainty how many hours flexibly furloughed employees have worked during the claim period. If the employee works more hours than that on which the claim is based, with the result that the employer overclaims the furlough grant, the excess must be paid back to HMRC.
| HEALTH & SAFETY
Paul Smith, Editor-in-Chief, Health & Safety Adviser |
COVID-19: How to Deal with Electrical Testing Delays
Some readers tell our Ask the Experts Helpdesk that they are struggling to organise portable appliance testing (PAT) for their electrical items. The biggest issue seems to be that much equipment, especially laptops, is simply not available for testing because so many people are still working at home. So, what is actually needed? The answer may surprise you.
If you are wrestling with how to get this year’s PAT done on time, here are 3 often overlooked points that should help:
1. Testing is Not a Legal Requirement
Of course, checking portable electrical equipment is vital to people’s safety, but there is actually no specific requirement for testing. The Electricity at Work Regulations 1989 simply call for equipment to be ‘maintained to prevent danger’.
2. Dutyholders have Flexibility
The guidelines from both the Institution of Engineering and Technology (IET) and the HSE give employers a lot of discretion on both on when and whether to test. If testing is done (and visual checks are just as important) employers are entitled to relate the frequency to the risk, with low risk items being checked less frequently. Annual testing may be convenient, but it’s not mandatory.
3. Much Common Equipment Does Not Need a Test Anyway
Take the laptop on which I am writing this bulletin: it’s mains-powered, but it actually operates at less than 20 volts, so it does not need testing. Yes, it has charger/power supply, parts of which do run at mains voltage, but the mark shows it is ‘Class II’ (double-insulated) so, again, no test is required.
In low risk environments such as offices, the HSE’s INDG236 recommends a combination of inspection and testing according to the nature of the equipment. How often the equipment is moved (if at all) is a key factor, since ‘more movement’ equals ‘greater risk of damage’. Testing is not needed for battery-operated, low voltage or Class II equipment; for other items, though, you should have an inspection/testing regime as set out in the table below:
| Type of Equipment | Formal Visual Inspection | Combined Inspection and Testing (PAT) |
| Desktop computers, VDU screens | 2–4 years | Up to 5 years |
| Photocopiers, fax machines: not hand-held. Rarely moved. | 2–4 years | Up to 5 years |
| Earthed equipment (Class I): e.g. electric kettles. | 6 months–1 year | 1–2 years |
| Cables (leads and plugs connected to the above), mains voltage extension leads and battery-charging equipment. | 6 months–4 years, depending on the type of equipment. | 1–5 years, depending on the type of equipment. |
The Current Crisis and Beyond
During lockdown, many other safety-related checking regimes have been temporarily relaxed (e.g. MOT testing and bus/lorry driver medicals), so we see a precedent there. With employers being given so much discretion on PAT anyway, we think it’s unlikely that inspectors will come down hard if you simply delay tests a few months until everyone is back at work – then everything that actually needs testing can be done in one go. And, on testing generally, the HSE has promised a ‘pragmatic approach’.
Do, though, encourage users to carry out their own visual check of any electrical equipment they use: a careful inspection will reveal hazards such as broken cables, cracked or damaged insulation and signs of overheating. If you find these faults, take the equipment out of use straightaway and get it replaced or professionally repaired. That applies wherever people work, and will continue to do so even when the current crisis is over.