Guidance under regulation 13 of the Health Protection (Coronavirus Restrictions) (No.2) (Wales) Regulations 2020.
This guidance is issued under regulation 20 of the Health Protection (Coronavirus Restrictions) (No. 3) (Wales) Regulations 2020 (the “Coronavirus Regulations”). It is aimed at any person who is required by regulation 17 of the Coronavirus Regulations to:
- take all reasonable measures to ensure that a distance of 2 metres between all persons is maintained on particular premises;
- ensure that other reasonable measures are taken to minimise risk of exposure to the virus, in particular by limiting close face to face interaction and by improving hygiene; and
- provide information to those entering or working at the premises about how to minimise risk.
The regulations enable the Welsh Ministers to issue guidance on what is expected under regulation 17. Regard must be had to this guidance, and to any guidance, codes of practice or other documents published by other bodies that are incorporated into this guidance.
As of 23 October this means that regard must also be had to guidance (also issued under regulation 20) on:
- the collection and retention of contact details from people who have been at particular premises; and
- responsibilities with regard to the wearing of face coverings
Regulation 17 imposes obligations on people responsible for premises open to the public or where work takes place to minimise the risk of exposure to coronavirus on the premises, and to minimise the risk of spread of coronavirus by those who have been on the premises.
Purpose of the guidance
The Welsh Government has for some time imposed a particular legal requirement on people responsible for workplaces and for premises open to the public to ensure that everything reasonable is done to maintain a 2 metre distance between people while they work.
The guidance is intended to assist people in understanding what “taking all reasonable measures” means and what measure should be taken to minimise the risk of exposure.
This is generally not about whether the businesses and others responsible for premises subject to this requirement work or pursue activities, it is about the way it is done. It is about taking proportionate action where it is practicable to do so.
Who does the guidance apply to?
This Guidance applies to everyone who is required by the Coronavirus Regulations to take all reasonable measures to minimise the risk of exposure to coronavirus. Most obviously it applies to employers and any situation where work is carried out (including in places where members of the public are present such as shops), but it applies also to a person responsible for premises such as shopping centres, car parks and toilets.
When does the guidance apply?
The requirement applies in a very broad range of circumstances, including every kind of workplace which is open. This includes for example public services, health and social care premises, schools and childcare settings, call centres, commercial and industrial premises, construction sites and other open sites such as roadworks and outdoor places including livestock markets.
The requirement also applies in all businesses and premises listed in Schedule 1 to the Coronavirus Regulations. Schedule 1 includes (at Part 3) a list of businesses and premises that are allowed to remain open to the public, but even for those premises required to close (listed at Parts 1 and 2) there remain circumstances in which individuals may be on the premises, and therefore the requirement to take all reasonable measures will continue to apply.
In the case of premises listed in Schedule 1 to the Coronavirus Regulations, the duty in law applies to the person responsible for the premises. In the case of other workplaces, the duty falls on the person responsible for the work being undertaken in the workplace; that is the person responsible for management control. It would not, for example, fall on the owner of a leased factory space or office.
It also applies to taxis and to public transport, but in addition the operators of these services must have regard to specific guidance about the legal obligation on passengers to wear a face covering and about providing information to passengers about this obligation.
Although the legal obligations fall on specific persons, everybody in a workplace or on premises open to the public has a personal responsibility not to frustrate steps taken to ensure that the risk of transmission of coronavirus across Wales is reduced.
What is the legal requirement upon which the guidance is based?
There are three elements to the rule, the first two of which are inter-related.
The starting point remains the same. All reasonable measures must be taken to maintain 2 metre distancing on premises or while anyone is working.
Next, other reasonable measures must be taken to minimise the risk of exposure to coronavirus. The main objective here is to reduce close face to face interaction and to enhance hygiene. These may be required in addition to maintaining physical distancing (for example though more frequent cleaning of premises or handwashing) or instead of physical distancing (for example by using screens when close interaction between people is unavoidable and inevitable).
What other measures are reasonable required depends on the extent to which 2 metre physical distancing can be maintained. Where it can, little more is likely to be needed as long as hygiene standards are maintained. Where it can’t more will be needed. Much of what is required is an alternative to maintaining a 2 metre distance.
However, maintaining social distancing will always be more effective than these other measures.
Finally, information should be provided about how to minimise risk of exposure to coronavirus on premises.
Working from home
The most effective way of minimising the risk of exposure to coronavirus in workplaces is to enable some or all staff to work from home, as often as possible. As “reasonable measures” there is an expectation that employers should be flexible and make adjustments wherever that is possible to enable that to happen. This may include issuing staff with laptops and mobile phones and facilitating communication from wherever members of staff may be.
Employees should not be required or placed under pressure to return to a workplace setting if there is not a clearly demonstrated business need for them to do so. Employers who are considering requiring their staff to return to workplace settings should first assess whether alternative arrangements could meet the majority of the employer’s needs. This should be discussed with staff or representatives of staff.
In determining whether to ask staff to return to workplace settings, employers should consider whether any individual’s wellbeing would be particularly adversely affected by their returning to work (for example because they are at increased risk or have been shielding, or because returning to the workplace would cause them severe anxiety).
During the current 2 week “firebreak” period, people are required to stay at home unless they have a reasonable excuse to leave the place where they are living. Work is considered a reasonable excuse but employers should consider the necessity of their staff attending the workplace. Where attendance at the workplace is not essential for the work in question, employers should permit staff to work from home.
There will inevitably be instances where working from home is not possible – for example in relation to the provision of public facing essential services, factory settings, construction sites, the provision of health and social care services, retail, hospitality, schools and childcare settings and where there are safeguarding concerns. Although physical distancing may be made easier by allowing some staff to work from home, the reasonable measures required in these instances will primarily need to be taken in the workplace. This is essential to prevent virus transmission between workers who have to attend a workplace and have no alternative but to work in close proximity to each other.
Scope for physical distancing on premises is to an extent constrained by the size of premises; however, regardless of the size of the premises it is essential to control their use. That may mean limiting access and will almost certainly require measure to be put in place to help or make people stay apart.
Examples of physical distancing measures
The nature of measures that are reasonable will be specific to the individual workplace or premises, and will reflect the physical environment and the nature of the business or activity being conducted.
As an example, most medical practitioners and carers can’t stay 2 metres away from a patient when giving treatment. They can stay 2 metres away from the patient for much of the time; they can stay 2 metres away from other medical practitioners or carers most of the time; and measures can be taken to ensure patients stay 2 metres away from each other while waiting to see them. This is what we mean by reasonable measures and taking measures like that should be applied consistently. Stopping treatment would not generally be a reasonable measure; treatment should continue wherever practicable, though in circumstances where the risk of spreading coronavirus outweighs the benefit of the treatment it may have to be postponed.
Examples of ways to support physical distancing include:
- reducing the number of people on the premises at any one time– increasing the space between people by reducing the total number of people in attendance, and changing the layout of premises/ furniture to support this
- controlling use of entrances, passageways, stairs and lifts
- controlling the use of shared facilities such as toilets and kitchens
- increasing space between staff – for example on a production line leaving 2 metre gaps between people and indicating spacing with markings
- considering appropriate provision of rest space – is there a congregation of workers at a certain time? Could additional space be provided, or breaks staggered?
- altering tasks undertaken – making adjustments to the way that work is done, to reduce contact
- staggering shifts to minimise people on site and to reduce congestion at the point of shift changes
Other reasonable measures
The purpose of requiring all reasonable measures to be taken to maintain 2 metres distance between people is to minimise the risk of exposure to the coronavirus. As this is not the only way to do this, and because maintaining 2 metre distance may not always be reasonable, the regulation also requires other reasonable measures to be taken for the same reason.
Although the requirement to take other reasonable measures stands no matter whether 2 metre physical distancing can be maintained, what other measure may reasonably be required will be heavily influenced by the extent to which it can.
When is it permitted to allow people to be within 2 metres of each other?
There are many situations in which it might not be possible or appropriate for people to stay 2 metres apart or at least not to stay 2 metres apart at all times. Examples include:
- provision of personal services, including in the home
- tasks that require two or more people to undertake them safely, including heavy lifting or carrying dangerous chemicals, although there may be measures that can be adopted elsewhere in the workplace
- education and childcare settings – especially where young children cannot understand the concept of physical distancing and where the appropriate support from adult workers may require closer contact eg to help a child who has fallen
- exceptions where close contact is necessary between workers and the users of services, although again there can be measures in the wider workplace which would minimise the risk of transmission
- taxis and public transport
- where dual working at less than 2 metres apart is necessary to ensure safety
- working in confined spaces, for example repairing infrastructure for utilities
Where premises are open to young children, it may not be practicable to attempt to rigidly maintain continual 2 metre distancing between those children (or even between those children and any adults on the premises). This is in part because it is harder for younger children to understand the concept of physical distancing, and in part because appropriate support from carers will often require closer contact. It is also of note that evidence suggests that younger children are less likely to transmit the virus (whether to other children or to adults), and that the virus appears in general to have a milder effect on children than on adults.
Finally, we recognise that maintaining 2 metre physical distancing could place some businesses under significant commercial strain. Although protecting public health and maintaining public confidence should be the priority, businesses are able to operate shorter physical distancing if the cost implications of maintaining 2 metre physical distancing are such that they would make the business unviable. However, in these cases it is vital that other reasonable measures are put in place to prevent the risk of exposure to coronavirus, as set out in the section below.
Your risk assessment should include consideration for what mitigating actions can be taken if 2 metre physical distancing is not maintained on a premises. If taking other reasonable measures will not sufficiently mitigate the risk of exposure to the virus, this suggests that 2 metre physical distancing is still required.
Ultimately, if the measures you can reasonably take are insufficient to mitigate the risks involved, Regulation 17 makes clear that reasonable measures may include ceasing to carry out certain activities and closing part of premises. Although regulation 17 is primarily concerned with how things are done, not whether they are done, there may be some activities where the risk of exposure to coronavirus is such that the only means of minimising the risk is not to do it.
Examples of other reasonable measures that can be taken
In all circumstances, but especially where social distancing will not be rigidly maintained, it is important that other measures are taken. The most obvious measures to take are anything which reduce close face to face interaction and to improve hand washing, avoidance of touching the face with unwashed hands, respiratory hygiene and cleaning.
Another measure which is mandatory (unless there are strong reasons to the contrary) is to require staff and visitors to indoor premises to wear face coverings where they will not be able to maintain social distancing. This applies in areas that are not open to the public, in addition to the separate requirements that apply in areas which are open to the public. Separate guidance has been produced setting out the responsibilities of employers and the managers of premises with regard to face coverings, and you are also required to have regard to that guidance.
- improved respiratory hygiene – for example by providing more bins for used tissues
- more frequent cleaning, in particular of shared facilities such as toilets and kitchens
- encouragement of washing hands well for 20 seconds with soap regularly and after close contact or touching
- provision of extra handwashing facilities and ensuring adequate supplies
- controlling use of premises, for example by:
- reducing the number of people on premises at any one time including by adopting an appointment system
- controlling entry and exit points, including where possible requiring to enter through one door and exit through an other
- controlling the way people walk around premises
- re-arranging furniture or workplaces in such a way as to reduce face to face interaction
- minimising loud noises which will require people to shout
- avoiding close face to face interaction, for example by:
- seating people back to back or front to back
- erecting physical barriers or screens between people.
- wearing appropriate protective equipment such as three-layered face coverings which comply with WHO guidance
Also, measures could be taken in the workplace to create fixed groups of workers who, while interacting with each other within their group, do not mix with others. This may be achievable for example where shift work is undertaken.
As an example, between 22 August and 23 October gatherings of up to 30 people were permitted indoors to mark the occasion of a wedding, civil partnership or a funeral. Such gatherings had to take place in premises operated by people subject to to the regulations on taking reasonable measures. In holding such gatherings, one reasonable measure that can easily be put in place is to ensure that no loud music is played. Unamplified live music performed by a socially distanced group (such as a string quartet) was classified as acceptable as a background, but blown instruments were not. Solo singers were allowed but the guidance was that screens should be considered where it was not possible to protect against droplet transmission by additional distancing. All of this was designed to discourage dancing and talking loudly, both of which are activities which pose significant risk of spreading coronavirus, and to reduce the risk of droplets spreading.
Guidance also stated that individuals should be spaced out and should remain seated wherever possible, so as to reduce close indoor contact between people in different households. In practice this was likely to be best achieved by marking the occasion with a meal with table service. While these provisions are not currently directly relevant, as these types of gathering are not currently permitted, they give an indication of what constitutes taking all reasonable measures in a particular scenario.
Information may be given orally or in writing (most obviously in signage). Generally the information provided will need to:
- explain what measures have been taken to maintain physical distancing or reduce close face to face interaction
- assist people to follow what is required, for example by giving directions about how to enter and walk around premises if a one-way system has been put in place or by reminding people when they need to wear face coverings and how to use them effectively and responsibly (see separate guidance).
Some basic signage is available here - safety and physical distancing signs for employers.
Collecting contact details
Collecting contact details from people who have been at premises is another way of helping to reduce the spread of coronavirus. This is because it allows people who are at risk of spreading coronavirus because they have come into contact with someone with the virus to be easily identified. This in turn allows them to be contacted and advised to self-isolate and apply for a test.
Whether individual premises need to collect contact details will depend on, for example, the nature of the premises and the length of time people spend within them. Separate guidance on the collection of contact details has been published. Everyone responsible for premises will also be required to have regard to that guidance.
Another reasonable measure that must be taken is to allow, and enable, people who normally work at the premises to self-isolate in the circumstances where that is encouraged. Those circumstances are:
- where they have tested positive for coronavirus;
- where they have had close contact with someone who has tested positive for coronavirus; or
- where they have been asked to do so by contact tracers or other public officials as listed at Regulation 17(3)(c).
Enabling people to self-isolate might entail many of the same actions listed in the “working from home” section above. However, in circumstances where staff cannot work from home or it would not be proportionate to take some of those actions because of the length of time period involved, employers should allow staff not to work for the period of their self-isolation.
What is a reasonable measure?
There is no hard and fast rule of what constitutes a reasonable measure. This can vary within different functions of an organisation as well as between sectors. The test is about all employers doing what they can in the workplace to change the way they work and for those responsible for premises to change the way premises are used.
While that is an objective test that is intended to be applied consistently, taking reasonable measures is not an absolute rule that has to be applied all of the time in all circumstances. In addition it is not a measure that will apply in the same way in all circumstances.
This guidance does not provide exhaustive advice of what should be done in every eventuality, but outlines considerations that businesses and organisations should reflect in determining measures. It will be for those subject to the requirements to justify the reasonable measures that they have adopted. They will need to demonstrate how they have considered what is reasonable to minimise the risks faced by workers who have to continue to attend work in their workplace and to those entering any premises. We advise employers to consult with their workforce and undertake a risk assessment which should be shared within the workforce.
Relevant considerations to deciding whether measures are reasonable
You are entitled to consider, among other things, the following factors
- Cost – is the cost of the measure proportionate to the number of people whose risk is reduced by the measure? For example, it would generally not be proportionate to extend a premises or to require additional fleet vehicles, but splitting shifts could probably be done at minimal cost.
- The nature of the work – are the measures practical, or would they so undermine the delivery of the service or undertaking of the business that they would be counterproductive?
- Can measures be put in place without compromising the health and safety of others? If measures would increase the health and safety risk, for example in the case of operating machinery, these would most likely not be reasonable measures.
- The nature and capacity of those in a workplace – where a service or business is responsible for looking after or working with vulnerable people, it may not be reasonable to institute rigid physical distancing. In addition, safeguarding of children and vulnerable adults must not be compromised.
- Measures should command staff’s confidence that due consideration has been given to the level of risk that they face. Employers may wish to introduce mechanisms to receive feedback on the measures that they have introduced.
The Welsh Government expects that businesses and others understand the severity of the situation we are facing as a society and will take the reasonable steps necessary.
By working together, the Welsh Government hopes that employers and employees can come to a reasonable judgment on the best way to limit close physical contact. It is in all our interests for this to happen so that important work can continue.
However, one reason why the Welsh Government has decided to go beyond guidance and include a duty in law is so that enforcement is possible, where it is necessary.
Both the police and local authorities have powers to enforce the requirements on businesses, services and workplaces imposed by the regulations.
- promote and maintain sustained compliance as a preventative measure to help contain the coronavirus;
- ensure action is taken immediately to deal with situations in which there is a risk of coronavirus spreading; and
- ensure that those who fail to comply are held to account.
In summary, the Regulations set out a specific and separate system for enforcing regulation 17. This provides that enforcement officers from local authorities can require certain (specified) measures to be taken in relation to premises, and they can if necessary close them. Closure can be required either because specified measures aren’t subsequently taken, or because the breach of the requirements is sufficiently serious to justify closing a premises immediately or with only very limited notice.
The enforcement system is set out in Schedules 2 and 3 to the Regulations and is based on the issue of a “Premises Improvement Notice” or a “Premises Closure Notice” or both, depending on the circumstances. More detail is available in the separate guidance - reasonable measures to minimise risk of coronavirus in workplaces and open premises: guidance for enforcement officers.