In his long-awaited announcement on 22nd February 2021, Boris Johnson set out a four-step plan to ease lockdown restrictions in England. In the paper that was issued alongside this announcement (Covid-19 Response-Spring 2021) (the Plan) detail on the issue of returning to workplaces is sparse. We are simply told that the guidance on working from home will continue to be in place during all steps until a review is conducted prior to Step Four (21 June 2021, at the earliest).
The requirement to work from home is currently set out in legislation. Under this legislation, working outside the home is only permitted where it is not reasonably possible to work from home. The Plan states that people can leave home for work if they cannot work from home and to escape illness, injury or risk of harm including domestic abuse. The Plan suggests that this current legal duty will continue in place until 29 March 2021.
After 29 March 2021, the legal obligation to stay at home will be removed. The Plan states that guidance will then set out that people should “continue to work from home where they can”. So the legal obligation to work from home will once again be replaced with guidance.
In Step Two (no earlier than 12 April 2021) the Plan states that people should continue to work from home where they can. In Step Three (no earlier than 17th May), despite some large sporting events and concert performances reopening, the advice will still be to work from home where possible.
Only in the weeks prior to Step Four (no earlier than the 21st of June 2020) will the government review the guidance about working from home. This will be part of the review about social distancing measures in general, including the rules on facemasks and 1m+. The Plan specifically states that people should continue to work from home where they can until this review is complete.
Clearly there is no guarantee that the roadmap and current dates will not slip due to one of the four tests causing a reconsideration of dates. Therefore 21 June 2021 seems like the earliest we can expect guidance to be changed to allow a significant return to workplaces.
However, employers may wish to bear in mind that under the current vaccination plans, all adults should be offered a vaccination by 31 July 2021. This means that, as of 21 June 2021, there will be still a considerable number of the UK adult population who will not have been vaccinated at all and many more will not have had their second vaccination. It is likely that many younger employees in particular may not be vaccinated by 21 June 2021. Some employers will no doubt be considering whether it is appropriate to ask employees to return to the workplace before they have had an opportunity to have a vaccination and where employees are able to work from home. Further, given the current guidance that individuals need to wait three weeks after having the vaccination before they get the highest possible level of protection, it seems likely that many employers may wish to delay any significant return to the office until the third week of August. This will be the point when, under current plans, all its employees who have had the vaccine should have this highest level of protection. Given this is in the middle of the summer holiday season, it seems likely that many employers will be looking at asking staff to return to the workplace from September 2021 onwards.
Of course, there will be employees who have not had the vaccine, perhaps due to pregnancy or certain allergies or because they did not wish to be vaccinated for some reason. Employers will need to factor this in, as it is likely to be impractical to delay a return to the office until 100% of staff are vaccinated.
Notwithstanding the above consideration of dates, a far bigger project for employers will be to consider the basis on which employees will return to the office. The whole world of office working has changed radically over the last year and many employers will be reconsidering their policies on flexible working and working from home, as well as their use of office space. Some may be carrying out an analysis of different roles to see which have to be office-based, which can be purely home-based and which can be flexible. There may also need to be a serious consideration of the amount of office space required for this new set up. If not already commenced, now is probably the time to start this analysis.
Kerry Garcia
Frances Rollin