Guidance under regulation 13 of the Health Protection (Coronavirus Restrictions) (No.2) (Wales) Regulations 2020.
This guidance is issued under regulation 13 of the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) Regulations 2020 (the “Coronavirus Regulations”). It is aimed at any person who is required by regulation 12 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 premises about how to minimise risk.
The regulations enable the Welsh Ministers to issue guidance on what is expected under regulation 12. 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.
Purpose of the guidance
The Coronavirus Regulations initially required a number of businesses and other premises and services to close. Incrementally, as a result of regular review of the Regulations, an increasing number of these have been allowed to open again. This is often subject to statutory requirements, supported by guidance from the Welsh Government and other bodies, including professional and sectoral bodies.
Maintaining a distance of 2 metres between persons who are not from the same household or extended household is an important aspect of the measures we must all take to minimise the risks of the spread of coronavirus. It is a discipline everyone should aim to maintain in all aspects of daily life.
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.
As restrictions have been lifted and more premises are open to the public, physical distancing is as important as ever as more people interact with each other. At the same time, however, the Welsh Government acknowledges the impracticality of maintaining 2 metre distancing in many settings and the potential for taking other steps that are effective in reducing risk of exposure to coronavirus.
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 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 member 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, hospitality businesses, commercial and industrial premises, construction sites and other open sites such as roadworks and outdoor places including livestock markets.
In the case of premises listed in Part 4 of Schedule 1 to the Coronavirus Regulations (public facing businesses and services that are allowed to remain open) and in the case of places of worship, crematoriums, cemeteries and community centres, 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 shielding, or because returning to the workplace would cause them severe anxiety).
Equally, there may be staff who wish to return to workplace settings. In these circumstances, the wellbeing of staff is a relevant consideration when deciding what measures to prevent the spread of coronavirus are reasonable. Although employers’ first priority should be minimising the risk of exposure to coronavirus, this should be balanced against the detrimental effect working from home is having on an employee’s wellbeing. In these circumstances if employees in this position can return to the workplace setting without a significant increase in the risk of exposure to coronavirus, this should be allowed. In considering this, employers should consider the extent to which the employee returning to the workplace would come into close contact with others both within the workplace but also in travelling to and from work.
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 as 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 requires 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.
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
More generally, as more and more aspects of daily life return to some degree of normality, every effort should still be made to keep socially distant. However there will be some situations where this is impractical. A person responsible for a sports court or pitch, for example, cannot be expected to take measures to ensure those playing basketball or football stay 2 metres apart at all times.
Similarly 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.
So, given that there are circumstances 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.
- 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.
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
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 restrictions on businesses, services and workplaces imposed by the regulations. The regulations provide for enforcement to be carried out by:
- police officers
- police community support officers
- persons designated by local authorities (for example environmental health officers)
- persons designated by the Welsh Ministers
If a responsible person is found not to be complying, that person may be subject to a fixed penalty of £60 (this reduces to £30 if paid within 14 days; the penalty doubles for any subsequent breaches up to a maximum penalty of £1920) or may be charged with a criminal offence and ultimately convicted and be required to pay a fine.
The Welsh Government reviews the regulations every 3 weeks. These reviews provide an opportunity to assess the effectiveness and consequences of the provisions. It will also provide an opportunity to engage with stakeholders from all sectors to inform the process.