The CLC published their revised Site Operating Procedures (Version 5), available here, and they apply from 4 July. They describe them as making minimal changes, to reflect the easing of lockdown. Whilst there are a number of ‘tinkering’ amendments, and the issues highlighted on the CLC page, one change might catch you unawares.
Some might ask if there is a difference between a “persistent” cough and one that is “continuous” but the latter is consistent with the NHS terminology. Contact made by the NHS Test & Trace Service gets a mention as one of the triggers for self-isolation. Certainly Twitter users seem pleased to hear site canteens may reopen.
Version 4 required that wherever possible workers maintain a distance of two metres and, where it was not, required you to consider whether the activity should continue and, if so, risk assess it using the ‘hierarchy of controls’ and sector-specific guidance. This has been superseded by requirement to maintain a distance of two metres “or one metre with risk mitigation where two metres is not viable”. The hierarcy of controls continues to apply where this distancing cannot be maintained. However, the controls themselves focus on where a 2m distance cannot be maintained. There is no additional guidance for circumstances where a 1m distance is also impossible. One therefore asks what is different here?
A new requirement is that if a worker develops the prescribed symptoms while at work, they not only leave site but they should also get a Covid-19 test. Further than that, they must not return to work until they have received a negative test result (or, in the event of a positive test result, their period of self-isolation is completed). There doesn’t seem to be an option for a worker to choose not to test and instead self-isolate for the required period. As the Government guidance for the construction sector does not suggest testing is mandatory or even advisable, my employment partner, Shalina Crossley, advises that whilst an employer can encourage employees to take the tests now they are available, employers should consider the data protection and other employment legal risks which may be involved in insisting that employees take tests and in revealing the results. An employer seeking information about NHS tests will be processing health information and should only do so if necessary and proportionate. In a site context, this is further complicated by the information being required by someone outside the employment relationship. Given the position stated in the Site Operating Procedures, employers should cover off the rationale for their position on testing in their own risk assessment. This is an area you may wish to discuss further with your HR team or legal advisers.
In the meantime, may I make a plea for the CLC to produce a mark-up in future, showing changes they have made to the SOP?
They should get a Coronavirus (Covid-19) test. They must then follow the guidance on self-isolation and not return to work until they have received a negative test result or, in the event of a positive test result, their period of self-isolation has been completed.