COVID-19 - Legal issues to consider on the return to the workplace

Please email KnowHow Employment if you would like to receive more detailed information about the key issues relevant to returning to the workplace in these jurisdictions.

This publication covers the following jurisdictions:

• UK
• France
• Spain
• Germany
• The Netherlands
• Italy
• Belgium
• UAE/DIFC
• Hong Kong
• PRC
• Singapore

UK

Contact - Andrea Finn

What is the likely time frame for a return to the workplace?

On 10 May 2020 the government announced a provisional roadmap for getting out of lockdown.

Employees who are not able to work from home have been encouraged to return to work, whilst any employees who can continue to work from home should do so.

For more information on the government’s guidance for returning to the workplace please click here.

What procedures need to be followed prior to a return to the workplace?

The guidance on working safely in offices and contact centres states that employers should consult with a health and safety representative (from the workforce) about health and safety measures to be put in place. The HSE guidance notes that smaller employers may choose to consult directly with staff (and direct consultation may be permitted under applicable Health & Safety regulations). A risk assessment should be carried out which must be shared with staff and published on the employer’s website (for businesses with over 50 employers). Employers must display a new “Covid-19 Secure” notice in the workplace.

What will a return to the workplace look like in practice?

For the time being staff should work from home if at all possible. Looking ahead, detailed guidance has been published on how to manage meetings and moving around the workplace and expectations around cleaning and hygiene. The government is also encouraging employers to seek to reduce the number of contacts each employee has by considering shift patterns and cohorting arrangements.

Can employees refuse to return to the workplace?

Employees may argue that returning to work puts them (and members of their household) at risk and say that they would prefer to continue to work from home.

We think it is difficult for an employee to argue this where appropriate measures have been put in place by the employer in line with relevant guidance, however, in practice, any plans to return to work may need to factor in time to adjust for employees who express serious concerns about health and safety at work and consider means of alleviating legitimate concerns.

What health and safety measures are likely to be put in place?

The government has confirmed that workplaces should not encourage the precautionary use of extra PPE outside of clinical settings. Wearing a face mask is optional and not required by law. Employers should support their workers in using face coverings safely if they choose to wear one, but there is no obligation on employers to provide face masks to staff.

Employer’s should continue to request that any employee with symptoms of Coronavirus self-isolates at home and does not attend work.

Government guidance is silent on employers carrying out additional checks of employers (i.e. temperature checks / Covid-19 test). In practice, in the absence of government guidance and given the additional requirements for processing special category personal data, employers should carry out a full risk assessment before putting in place any additional checks, including determining the legal basis for the processing. Whilst employee consent is unlikely to be sufficient for data protection purposes for these sorts of checks (unless specific and genuinely freely given), a process of seeking explicit consent is likely to be sensible in practice in any event.

France

Contact - Laurence Renard

What is the likely time frame for a return to the workplace?

Lockdown restrictions are expected to be relaxed from 11 May 2020.

What procedures need to be followed prior to a return to the workplace?

The CSE needs to be consulted on the resumption of / returning to work plan, as part of its role in relation to employment and working conditions, as well as on any important amendments to the health and safety conditions of the employees.

What will a return to the workplace look like in practice?

A national protocol has been issued by the Employment Ministry setting out guidelines on how employees should come back to work.

Working from home should remain the norm where possible for the time being.

“Barrier measures” (i.e. handwashing, social distancing) should be put in place.
The protocol contains technical guidance on how employees should circulate in the office and the maximum occupation of office spaces.

What health and safety measures are likely to be put in place?

Masks and gloves are not obligatory unless proper social distancing is not possible (they are deemed to give a “false” sense of security).

Testing or systematic temperature checks are not recommended.

Spain

Contact - Eduardo Peñacoba

What is the likely time frame for a return to the workplace?

Employees will be working from home wherever that is possible until at least 9 August 2020.

What procedures need to be followed prior to a return to the workplace?

The Works Council have the right to be informed and consulted by the employer on matters likely to affect employees and working systems.

The Health and Safety Committee (joint council formed by employees and employer) must also participate in the preparation, implementation and evaluation of risk prevention plans and programmes in the company.

Employers should consult the health and safety prevention service, which has (or should have) the technical knowledge about how to implement health measures for a safe return to work.

What will a return to the workplace look like in practice?

Social distancing must be maintained. Different shifts and schedules should be used to maintain social distancing between workers.

What health and safety measures are likely to be put in place?

The health and safety prevention service is empowered to determine which preventative practices employees must observe – ie wearing of face masks, temperature checks, testing.

Germany

Contact - Sascha Morgenroth

What is the likely time frame for a return to the workplace?

Some businesses have started to re-open, others will do so from 4 May 2020.

What procedures need to be followed prior to a return to the workplace?

No prescribed procedures but it is recommended to speak to employee representative bodies about possible measures.

What will a return to the workplace look like in practice?

Employers could consider cohorting arrangements, or arranging employees into different shifts.

Working from home currently requires agreement from the works council, but there are plans in the autumn to implement a statutory right for employees to work from home.

Can employees refuse to return to the workplace?

Generally no. Only employees who are high-risk (who are not provided with protective gear) or those with childcare responsibilities can refuse to return.

What health and safety measures are likely to be put in place?

Likely to be permissible to ask about symptoms in the last two weeks. Not likely to be permissible to test for COVID-19 (unless done voluntarily). Some states are allowing temperature checks, while other states consider this to be a data protection violation.

The Netherlands

Contact - Joris Oster

What is the likely time frame for a return to the workplace?

Lockdown is expected to continue until at least 19 May 2020.

What procedures need to be followed prior to a return to the workplace?

No prescribed procedures, but it will depend on the return to work arrangement the company wishes to implement and on the guidance given by the government/RIVM at the time.

What will a return to the workplace look like in practice?

Awaiting further guidance from the government/RIVM about how the return to work should be organised and the measures which companies will be recommended to take.

Can employees refuse to return to the workplace?

It will depend on the reasons for their refusal and this should be assessed on an individual bases considering all circumstances. Once the government/RIVM decides that all employees can return (phased) to work, employees can - in principle - not refuse to come into the office. If - after consultation with the company and without having legitimate reasons- employees refuse to work in the office they should be warned and would subsequently no longer be entitled to their salary.

What health and safety measures are likely to be put in place?

If the company examines its employees (temperature testing, questions about the employees medical or health conditions) or asks its employees to cooperate on a voluntary basis, it can be fined by the Dutch data protection authority (i.e the questions should not be asked irrespective of the likelihood employees challenging the measures or not).

Italy

Contact - Davide Sportelli

What is the likely time frame for a return to the workplace?

The first phase of Italy’s return to work will take place between 4 and 18 May 2020 in certain sectors.

What procedures need to be followed prior to a return to the workplace?

Any return to work will require strict compliance of health and safety measures and protocols in the workplaces.

What will a return to the workplace look like in practice?

At the moment, widespread office re-opening is not envisaged in Italy, though certain sectors will be reopened on a staggered basis.

Employees should be encouraged to work from home, where possible.

What health and safety measures are likely to be put in place?

A joint protocol has been signed by employers and trade union organisations setting out obligations with respect to hygienic precautions and health surveillance.

An employee’s temperature can be taken before they enter the workplace, provided that the temperature is not registered or stored. Only the fact that the relevant threshold of 37.5° has been exceeded can be registered (if applicable).

An employer is entitled to ask for self-declarations to confirm that the employee, client or supplier has no COVID-19 symptoms and has had no contact with people infected or in quarantine in the past 14 days.

Employers are not permitted to disclose to colleagues the name of a colleague infected. The employer is obliged only to liaise with public health authority if there is a COVID-19 case in the office.

Belgium

Contact - Dimitri Van Uytvanck

What is the likely time frame for a return to the workplace?

Lockdown restrictions are expected to be relaxed from 4 May 2020.

What procedures need to be followed prior to a return to the workplace?

Regular consultation with the Works Council, the Committee for Prevention and Protection at Work, the trade union delegation and the employees themselves should take place as early as possible before any return to work.

Employers will have to comply with relevant sector guides.

What will a return to the workplace look like in practice?

Social distancing must be maintained. Consideration could be given to flexible working hours and working in shifts. Employers may also consider collective protective equipment (i.e. screens or walls) and personal protective equipment.

Can employees refuse to return to the workplace?

Theoretically, if an employee stays at home without a valid doctor's certificate or without taking vacation, he is unlawfully absent and in principle this can lead to the end of the employment contract. Nevertheless, in these exceptional circumstances, it is preferable to seek to reach an agreement.

What health and safety measures are likely to be put in place?

An employer cannot ask or require an employee to take a COVID-19 test. An employer also cannot ask whether members of an employee’s household have any symptoms.

Employers may take the temperatures of staff, but this is not recommended and if it is carried out temperatures may not be recorded.

UAE/ DIFC

Contact - David A.J. McDonald

What is the likely timeframe for a return to work?

Lockdown restrictions have been relaxed in the UAE but employees working in non-essential sectors are only permitted to return to offices if it is “absolutely necessary” and only 30% of the workforce can be in the office at any one time. Employees over 60 years of age and those that are pregnant or with chronic diseases / illnesses must work from home.

Those working in the essential sectors (currently being healthcare, sterilisation / cleaning service providers, infrastructure, hospitality and food, and financial establishments) are permitted to continue working and are not subject to the Government curfew (currently set between 10pm and 6am) or other restrictions.

We anticipate that the restrictions may be further relaxed following the end of the holy month of Ramadan around the end of May 2020 but there has been no Government statement to that effect.

What procedures need to be followed prior to a return to work?

No prescribed procedures (noting the occupancy restriction above) but it will depend on the return to work arrangement the company wishes to implement and on the Government guidance issued at the relevant time.

What will a return to work look like in practice?

Widespread office re-opening is not currently envisaged. However, for employees that do return to work (subject to the occupancy restriction noted above), social distancing must be maintained. Consider also how the sharing of offices will work in practice to maintain social distancing requirements and whether phased return and / or shift working is possible.

Employees should be encouraged to work from home where possible.

For employees returning to work, they will need to ensure that their working hours and travel time to and from the workplace comply with the Government curfew (currently between 10pm and 6am for non-essential sector workers).

Can employees refuse to return to work?

Employees over 60 years of age and those that are pregnant or with chronic diseases / illnesses must work from home.

Strictly speaking, for all other employees, if they refuse to return to work without a valid medical certificate or taking annual or other permitted leave, they will be unlawfully absent and could in theory be terminated by the employer. In practice however, it would be preferable to try and reach an agreement with the employee and offer the right to work from home where possible.

What health and safety measures are likely to be put in place?

As noted above, for employees that do return to work (subject to the occupancy restriction noted above), social distancing must be maintained. Office canteens and kitchens will likely remain closed and face-to-face meetings will also be discouraged (both internal and external). Greeting co-workers or visitors with handshakes or other forms of personal contact will be discouraged.

Current Government guidelines mandate the use of face masks and temperature testing and we expect that this will continue to be a requirement and condition of people being out in public whether returning to work or otherwise.

Further, Government guidance also recommends that employees wear disposable gloves (although not a mandatory requirement).

Consider also how the sharing of offices will work in practice to maintain social distancing requirements.

Hong Kong

Contact - Fiona Loughrey

What is the likely timeframe for a return to the workplace?

Anytime. Although working from home practices have been encouraged and widely adopted, Hong Kong has never implemented any rigid lockdown arrangements which would prohibit working in the office. More and more employers (including the government) have recently been arranging for their employees to return to the workplace.

What procedures need to be followed prior to a return to the workplace?

No prescribed procedures, but it is of course recommended to inform employees about plans and timing for a return to the workplace (especially for employees with caregiving responsibilities).

What will a return to the workplace look like in practice?

Social distancing is expected to be maintained. From a business continuity / risk management perspective, employers will want to minimise the risk of clusters of illness. In particular, if social distancing is not otherwise possible, employers may consider:

• cohorting arrangements (team A / team B); and
• adjusted working hours (in particular to avoid travelling at peak times).

Can employees refuse to return to the workplace?

The position will be very similar to that in the UK, that is, an employee may argue that returning to work puts them (and members of their household) at risk and therefore prefer to continue to work from home. We think it is, however, difficult for an employee to argue this where appropriate measures have been put in place by the employer in line with relevant guidance. In practice, any plans to return to work should take into account the time required for the employees to make the necessary arrangements, the time to adjust for employees who express serious concerns about health and safety at work as well as the appropriate means of alleviating the legitimate concerns of the employees.

Employees have a duty to comply with any lawful and reasonable order of the employer, and (technically) a refusal to return to the office may amount to a breach of the employment contract.

What health and safety measures are likely to be put in place?

No specific legal obligation has been imposed, but the Centre for Health Protection recommends that employers adopt the following practices:

• flexible working and lunch hours;
• avoid holding large-scale meetings;
• reduce face-to-face contact among co-workers; and
• avoid arranging lunch / social gatherings.

In addition, the following are recommended for the management of the office premises (or employers, as applicable):

• check body temperature of entrants; and
• maintain good environmental hygiene, such as: clean and disinfect common areas (including lobbies, lifts and reception counters) and frequently touched surfaces (such as handrails and buttons) at least twice daily; maintain good ventilation; and ensure toilet hygiene.

While the above do not constitute legal requirements, compliance would be helpful for establishing that an employer has discharged its duty in taking reasonable care of workplace health and safety.

In addition, wearing masks and washing hands are also recommended practices by the Centre for Health Protection and are widely practiced in Hong Kong. There is currently no specific legal obligation on employers to provide face masks to staff and the government has recently announced plans to distribute reusable face masks to all Hong Kong residents. Requiring employees to wear masks whilst in the office can further support that an employer has discharged its duties to protect employees’ health and safety, but until reusable masks are distributed to all residents, employers would need to ensure that face masks are made available to all employees if it is minded to impose such requirement because, despite the increase in the supply of face masks, they are still relatively expensive in Hong Kong. Hand sanitisers should also be made available.

PRC

Contact - Fiona Loughrey

What is the likely timeframe for a return to the workplace?

Technically, returning to the workplace has been permitted since mid-February, subject to obtaining a work resumption approval from the sub-district government authorities and to various operational criteria and precautions, such as scheduling alternate working days or routines, and ensuring that only 50% of staff (simultaneously) attend the office at any given time.

Precautions and restrictions have been relaxed since the beginning of April. The central government is encouraging a full return to work as far as possible and some of the original criteria no longer apply.

What procedures need to be followed prior to a return to the workplace?

No prescribed procedures.

The government work resumption approval which was required previously is no longer needed in all cases.

What will a return to the workplace look like in practice?

Most companies in major cities in China such as Beijing, Shanghai and Shenzhen have already reopened, and employees have returned to normal working from previous flexible arrangements such as working remotely, or alternate work days or weeks.

That said, employers should be aware of the updated government guidance which encourages employees to still wear face masks in open or public areas, and encourages employers to avoid having employees travel abroad or to any city in China designated as high or medium risk.

Can employees refuse to return to the workplace?

Generally no. Employees cannot refuse to return to the workplace, except for employees who are being isolated either at home or by the government because they:

• are confirmed to currently have COVID-19;
• have had COVID-19 symptoms within the past 14 days;
• have had close contact with a person confirmed or suspected of having COVID-19 (including those they live with or care for) within the past 14 days; or
• have returned from travel to another country (or a city designated as high or medium risk within China) in the past 14 days.

However, a refusal may be reasonable (and should be assessed considering the specific circumstances) if there is a legitimate reason.

What health and safety measures are likely to be put in place?

Employers are required to take measures to manage employees’ health, including measuring temperature regularly (although there is no longer a requirement to take temperature on a daily basis), reporting any issues and helping employees to seek medical treatment if they display symptoms or fall ill. There is no requirement to record temperatures.

Employees should carry masks at all times and wear them in crowded places or public areas (such as in shopping malls and on public transport) and when meeting others if at a distance under 1 meter. Technically, however, there is no requirement to wear masks at all times in the office.

Employers are encouraged to continue the previous prevention measures, such as regular cleaning and disinfection of public areas, maintaining adequate ventilation and using natural ventilation as far as possible. That said, these requirements are not mandatory.

Singapore

Contact - Fiona Loughrey

What is the likely timeframe for a return to the workplace?

The circuit breaker measures (which mandates the closure of all workplaces unless the workplace is used for the provision of essential services) are expected to continue until at least 1 June 2020.

What procedures need to be followed prior to a return to the workplace?

Employers must ensure that the safe management measures contained in the ‘Requirements for Safe Management Measures at the workplace after Circuit Breaker period’ are put in place before the workplace is allowed to be open (see below).

What will a return to the workplace look like in practice?

Working from home must be maintained where employees are able to perform their work by telecommuting from home.

Where this is not possible, employers must implement:

• staggered working and break hours;
• shift or split team arrangements.

In addition, employers must put in place measures to reduce physical interaction and maintain safe distancing in the workplace, including:

• cancelling and/or minimising physical meetings;
• ensuring clear physical spacing of at least one meter between persons at all times; and
• cancelling or deferring events or activities that involve close and prolonged contact amongst participants.

Can employees refuse to return to the workplace?

Similar to the UK, that is, an employee may argue that returning to work puts them (and members of their household) at risk and therefore prefer to continue to work from home. We think it is, however, difficult for an employee to argue this where appropriate measures have been put in place by the employer in line with relevant guidance. In practice, any plans to return to work should take into account the time required for the employees to make the necessary arrangements, the time to adjust for employees who express serious concerns about health and safety at work as well as the appropriate means of alleviating the legitimate concerns of the employees.

Employees have a duty to comply with any lawful and reasonable order of the employer, and (technically) a refusal to return to the office may amount to a breach of the employment contract.

What health and safety measures are likely to be put in place?

The health and safety measures mandated by the Singaporean government include:

• ensuring that all personnel at the workplace wear a mask and other necessary personal protective equipment;
• encouraging employees to observe good personal hygiene;
• ensuring cleanliness of the workplace;
• providing cleaning and disinfecting agents in areas where there is lots of human traffic;
• requiring employees and visitors to conduct temperate screening and check for respiratory symptoms at least twice daily;
• mandating the provision of health and travel declaration by employees and visitors;
• ensuring that employees only visit one clinic;
• preparing an evacuation plan for unwell or suspected cases; and
• putting in place a follow-up plan in the event of a confirmed case.

The above measures are mandatory and failure to comply will result in a fine of up to SGD 10,000 and/or a term of imprisonment of up to six months for the first offence, and a fine of up to SGD 20,000 and/or a term of imprisonment of up to 12 months for the second or subsequent offence.

See our coronavirus (COVID-19) feature for more information generally on the possible legal implications of COVID-19.