Guidance under regulation 18 of the Health Protection (Coronavirus Restrictions) (No.5) (Wales) Regulations 2020.
Introduction (including what has changed)
Regulation 16 of the Health Protection (Coronavirus Restrictions) (No. 5) (Wales) Regulations 2020 as amended (the “Regulations”) imposes obligations on people responsible for premises open to the public or where work takes place (called “regulated premises” in the Regulations):
- 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
This guidance (made under regulation 18 of the Regulations) on the practical application of this legal requirement has been reviewed and updated to coincide with amendments made to the regulation which took effect from 17 July 2021.
Key changes include:
- Clarifying that those responsible for the premises are required to provide information to those working on the premises about the risk of exposure to coronavirus (identified in the risk assessment required under regulation 16) and about the measures to be taken to minimise the risk (also required under regulation 16);
- Providing that the specific requirement to take all reasonable measures to maintain 2 metre distancing between those on the premises only applies indoors (other measures are, however, required and this may – depending on what is reasonable in the circumstances and on what else is done to minimise the risk of exposure to coronavirus – mean that physical distancing is still required, Physical distancing should still be one of the reasonable measures considered to mitigate the risk of exposure to coronavirus).
A specific coronavirus risk assessment is still required and should form the basis for what reasonable measures are to be taken on any premises to minimise the risk of exposure to coronavirus and the risk of spread of coronavirus.
There is an updated 4-Step approach to what is required set out under regulation 16. These steps represent a sequence in which the measures should be considered but is important that all steps are considered together and in the round. For example, improving ventilation (including carrying out an activity outdoors) is one of the most important measures a premises can take, but is not described in the Coronavirus Regulations until Step 4; but when considered in the round if this step is taken it will inform the overall risk assessment and what other reasonable steps to take.
A person responsible for regulated premises that are open to the public or which are a workplace is required to undertake the following steps:
- Step 1: undertake a specific assessment of the risk of exposure to coronavirus at their premises (and to consult persons working on the premises or representatives of those persons in doing so);
- Step 2: provide information to those entering or working at the premises about how to minimise the risk of exposure to coronavirus. This includes, in particular, information to all those working on the premises about their risk of exposure to coronavirus identified in the risk assessment and the measures to be taken to minimise the risk.
- Step 3: for indoor premises, to take all reasonable measures to ensure that a distance of 2 metres between all persons is maintained on, or while waiting to enter, their premises except between
- people from the same household (and carers of persons from that household) or
- at Alert Levels 1 and 2 – groups of up to 6 people from different households (not counting those under 11 or carers of persons attending).
- Step 4: ensure that other reasonable measures are taken to minimise risk of exposure to the virus on the premises. For example by seeking to prevent people who may have coronavirus from being present, by ensuring people gather outdoors instead of indoors where this is practicable, by improving ventilation indoors, by limiting close face to face interaction and contact, and by improving hygiene. For outdoor premises where Step 3 does not apply, physical distancing should be considered as a reasonable measure to minimise these risks;
For examples of the particular measures that should considered in different kinds of premises, please see sector specific guidance.
As a starting point, each of the 4 Steps is required to be taken (though Step 3 is not necessary for outdoor premises). However, measures taken under Step 4 that mitigate the risk that occurs where people from different households are within 2 metres of each other indoors may be taken into account when considering what reasonable measures to take under Step 3.
As set out below there may be limited circumstances when 2 metre social distancing indoors is not always reasonable or where other mitigating measures may be sufficient to mitigate the risks without distancing at 2 metres. Where this is the case, a person responsible for premises would be expected to take additional and strengthened measures under Step 4, alongside maintaining as much physical distancing as reasonable.
The responsible person may have regard, for example, to the fact that people have been tested for coronavirus prior to an event or that the way the premises is set out and managed prevents people from having close face to face interaction. Also important is the extent to which the premises are well ventilated. 2m distancing may not be required as a result if those present are all seated facing the same direction, if those present do not stay for a prolonged period and if the air in the premises circulates effectively using natural or mechanical ventilation. However, 2m distancing should be maintained where additional measures such as these, which mitigate risk, are not in place (or not sufficient to mitigate the risk, for example at pinch-points or where people are moving around, such as ingress and egress points, toilets, concession stands etc.).
This guidance explains below what “reasonable measures” may mean in different settings. It also provides further information about the more specific obligations found in regulations 17 and 17A (which apply in addition to the general obligation in regulation 16). Regulation 17 requires specific measures to be taken by persons responsible for licensed premises and regulation 17A requires specific measures to be taken by persons responsible for retail premises.
The Regulations enable the Welsh Ministers to issue guidance on what is expected under regulations 16, 17 and 17A. 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.
Full consideration must also be had to guidance under the regulations 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
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 (called “regulated premises” in the Regulations) to ensure that all reasonable measures are taken to maintain 2 metres distance between people while they are present on the premises in question including workers while they work. Since 17 July there has been additional flexibility for outdoor premises around physical distancing.
Physical distancing remains an important mitigation to limit spread of coronavirus. However, other measures such as ventilation and hygiene are also important and the Welsh Government acknowledges the impracticality of maintaining 2 metre distancing indoors in some circumstances. However, even physical distancing alone will not be sufficient in a range of circumstances – for example where people are indoors with other people for long periods of time without effective ventilation. Therefore, a range of measures are needed to reduce the risk of exposure to coronavirus effectively.
The guidance is intended to assist people in understanding what “taking reasonable measures” means and what measures should be taken to minimise the risk of exposure.
Sector-specific guidance on the issue is available for more detailed and tailored information on preventing risk of spread of coronavirus in the workplace. This is available on this website or by email from: Covid19.Legislation@gov.wales
To whom does the guidance apply?
The duty in law to take reasonable measures applies to the person or persons responsible for premises open to the public and on the person responsible for the work being undertaken in any workplace; that is the person responsible for management control (not necessarily, for example, the owner of a leased factory space or office).
In the case of regulated gatherings and events, and regulated gathering for the development and wellbeing of children, the duty applies to both the person responsible for the premises where the activity is taking place and the person responsible for the activity.
In the case of regulated premises that also host other business on site, for example hospitality settings that host live music or, karaoke. Here the duty applies concurrently to both the person responsible for the premises where the activity is taking place and the person responsible for the individual business performing (the band in this example).
This applies also in the case of weddings, civil partnerships and wakes that are organised by an individual but held on regulated premises that involve outside businesses being present during the event, for example, outside caterers, live music, or other such performers. The duty applies to both the person responsible for the premises where the activity is taking place and the person responsible for the individual business present during the event.
The duty to take reasonable measures also applies to taxis and to public transport provision (including indoor areas of transport hubs such as bus stations, railway stations, airports and ferry ports), 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. Along with the supplementary detailed transport guidance produced within the context of public transport.
Although the legal obligations fall on specific persons, everybody in a workplace or on premises open to the public has a personal responsibility both for their own behaviour and also not to frustrate steps taken to ensure that the risk of transmission of coronavirus across Wales is reduced.
When and where does the guidance apply?
The Regulations provide for four Alert Levels which may be applied depending on the assessed level of risk from the pandemic in Wales. This involves different levels of restrictions based on the interventions the Welsh Ministers consider necessary to control the coronavirus.
Because regulation 16 applies at all Alert Levels this guidance is intended to apply in principle at all of these Alert Levels. However when considering what reasonable measures to take, those who have responsibility under the Regulations must consider the Alert Level in operation at the time. A limited measure taken at a low alert level may be reasonable whereas it would likely be unreasonable where the alert level is high. If in doubt on any related issues, you may wish to speak to your Local Authority at an early stage for advice on matters. In addition some measures may not be relevant when premises are closed to the public. Detail on the alert levels and their significance is provided in the Wales Coronavirus Control Plan.
The requirement to take reasonable measures 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, higher education, further education settings (including training centres and adult learning), call centres, hospitality businesses, 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 required to close where there remain circumstances in which individuals may lawfully be on the premises.
The removal of all caps on the number of people who can gather outside in all settings will allow large scale outdoor events to resume including in open air sport stadiums or festivals. However, while the legal restrictions on individuals gathering outdoors have been removed, the requirement to take reasonable measures will, in practice mean that there are constraints. While Step 3, relating to maintaining 2m physical distancing, is notrequired in meeting the legal obligations set out in Regulation 16 for these events, physical distancing is still part of the package of reasonable measures that event organisers will be expected to take under Step 4. Where lower levels of physical distancing are put in place or it is (objectively) not reasonable in the particular circumstances, additional measures should be put in place to minimise the risk of exposure to coronavirus.
There are specific requirements for retail premises and licensed premises (see below).
Specific coronavirus risk assessments
The Regulations require persons responsible for premises open to the public or for work premises to carry out a specific assessment of the risk of exposure to coronavirus in relation to the premises. In doing this consultation is required with those who work on the premises or their representatives (such as a trade union). This assessment forms the basis for determining what reasonable measures need to be undertaken to minimise the risk, and for that reason should be kept under review.
Outcomes of risk assessments, and all identified risks, should be taken into consideration when planning what reasonable measures should be taken to mitigate risk of exposure to coronavirus. It is not enough to simply conduct a Risk Assessment – it should form the basis for the reasonable measures eventually taken.
Each business (the responsible person for the regulated premises or work carried out on premises) must undertake, and have available on site, a specific COVID-19 risk assessment which should be updated to align to the latest restrictions and requirements on operating both indoors and outdoors.. In addition, business owners will need to take full account of the requirement to keep staff safe at work and offer individual risk assessments for their members of staff dependent on the roles they play and whether they are at increased risk or clinically extremely vulnerable. Employers should appoint and engage with a staff representative, and trade union representative wherever possible, for all employee-related coronavirus issues.
It is also a legal requirement for the person responsible for the premises to provide information to those working at the premises about the risk of exposure to coronavirus identified under the risk assessment, and the measures to be taken to minimise the risk.
The obligation to assess the risk that arises specifically from coronavirus applies in addition to the more general requirement to undertake a risk assessment found in regulation 3 of the Management of Health and Safety at Work Regulations 1999 (S.I. 1999 No. 3242). However where a risk assessment completed under those Regulations already assess the risk of exposure to coronavirus this is sufficient to meet the requirement (though this is subject however to the need to consult and inform those working on the premises and to keep the position under review). The obligation to provide information to staff applies in addition to that already exists under regulation 10 of the 1999 Regulations.
When considering what reasonable measures should be taken at any premises, those responsible should make an assessment of risk which is specific to all of the activities undertaken at the workplace and should be updated if new activities are added. This includes taking into account all individuals who use or visit that setting including permanent and temporary staff, contractors, visitors and members of the public. Risk assessments are an established part of managing health and safety at work and specific coronavirus risk assessments should be completed as part of a wider safety management system. Comprehensive guidance is available from the Health and Safety Executive.
This guidance does not cover risk assessments in detail, however the assessments should be undertaken in accordance with the procedural requirements set out in regulation 3 of the Management of Health and Safety at Work Regulations 1999 (as it has been modified by the Coronavirus Regulations). The risk assessment should be reviewed regularly as changes in the wider threat from the pandemic should be taken into account when considering how the obligation to take reasonable measures to minimise the risk should be met. Risk assessment is a dynamic process which should always involve those working on the premises. A template that can be used for a Wales specific coronavirus risk assessment.
While risk assessments do not need to be published, there is a requirement that all those working on the site are informed of their content, and the mitigation measures they set out. Where the responsible person is an employer who employs 5 or more employees the employer must record the significant findings of the risk assessment and any group of employees identified as being especially at risk.
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. All employers should do what they can in the workplace to change the way they work and for those responsible for premises should do what they can to change the way premises are used.
When thinking about what is a reasonable measure, it is important to consider the alert level in force and advice from Welsh Government and public health authorities about the level of risk. As the alert level changes this has an effect on what is needed to comply with the duties to take “reasonable measures”.
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 attend work in their workplace and to those entering any premises.
Some of the reasonable measures discussed in this guidance are specifically set out in the Regulations, in regulation 16 and also 17 relating to licensed premises and 17A relating to retail premises (see below). This guidance and other advice published by Welsh Government is intended to assist in making those judgements.
What is the legal requirement upon which the guidance is based?
This guidance is made under regulation 18, and relates to the legal requirement in regulation 16, 17 and 17A of the Coronavirus Regulations. A person responsible for premises that are open to the public or which are a workplace is required to undertake the following Steps:
- Step 1: undertake a specific assessment of the risk of exposure to coronavirus at their premises (and to consult persons working on the premises or representatives of those persons in doing so)
- Step 2: provide information to those entering or working at the premises about how to minimise the risk of exposure to coronavirus. This includes, in particular, information to all those working on the premises about their risk of exposure to coronavirus identified in the risk assessment and the measures to be taken to minimise this risk
- step 3: for indoor premises, to take all reasonable measures to ensure that a distance of 2 metres between all persons is maintained on, or while waiting to enter their premises (except between people from the same household or – at Alert Levels 1 and 2 – groups of up to 6 people from different households)
- Step 4: ensure that other reasonable measures are taken to minimise risk of exposure to the virus on the premises, in particular by seeking to prevent people who may have coronavirus from being present, by ensuring people gather outdoors instead of indoors where this is practicable, by improving ventilation indoors, by limiting close face to face interaction and contact (including physical distancing for outdoors premises), and by improving hygiene;
As a starting point, each of the 4 Steps is required to be taken (though Step 3 is not necessary for outdoor premises). However, measures taken under Step 4 that mitigate the risk that occurs where people from different households are within 2 metres of each other indoors may be taken into account when considering what is reasonable to do under Step 3. As set out below there may be limited circumstances when 2 metre social distancing is not always possible or reasonable indoors. Where this is the case, a person responsible for premises would be expected to take additional and strengthened measures under Step 4, alongside maintaining as much physical distancing as reasonable. Similarly where physical distancing is not possible or reasonable outdoors under Step 4, premises would be expected to take additional and strengthened measures.
The responsible person may have regard, for example, to the fact that people have been tested for coronavirus prior to an event or that the way the premises is managed means people will be prevented from having close face to face interaction, such as well-ventilated seating that all faces the same direction. Physical distancing (2m indoors) should be maintained in areas where these additional mitigations are not in place (e.g. pinch-points or where people are moving around, such as ingress and egress points, toilets, concession stands etc.).
Reasonable measures also include enabling workers who are required to self-isolate because they have tested positive for Coronavirus, or are a close contact of someone who has tested positive to do so. If as a result of an employer’s action, a person fails to self-isolate when required to do so, the employer may be guilty of an offence and could face a fine up to £10,000.
Finally, information should be provided to those on the premises about how to minimise risk of exposure to coronavirus on premises.
There are additional requirements where premises are selling or supplying alcohol for consumption on the premises or allowing alcohol brought to the premises by customers to be consumed there. These specific requirements, set out in regulation 17, apply in addition to the more general obligation to take “ reasonable measures”. They do not apply where the premises are closed, and they may apply differently depending on whether the premises are allowed to be open in full or only for the purposes of collecting a takeaway.
For cinemas, theatres and sports grounds, where a customer is normally seated at the premises, table service is not required but food and drink should be consumed where those customers would normally be seated (e.g. for the showing of a film, a live sporting event or a live theatrical performance).
Customers must also be seated in the premises (in any place other than at a bar) to order, be served and consume food and drink. The person responsible for the premises must ensure that a table service system applies for ordering food and drink (unless food is provided on a buffet basis, in which case customers may select food from the buffet and return to where they are seated). For cinemas, theatres and sports grounds, where a customer is normally seated to watch a performance or show, table service is not required but food and drink should be consumed when seated.
All licenced premises should collect contact information from each person at the premises and take reasonable measures to ensure that the contact information is correct.
Where retail premises are offering goods or service for sale or for hire, including off-sales or take away, the person responsible for the premises must, under regulation 17A, do the following as part of the reasonable measures they put in place. These specific requirements apply in addition to the more general obligation to take “reasonable measures”. They do not apply where the premises are closed, and they may apply differently depending on whether the premises are allowed to be open in full or only for the purposes of sales by “click and collect”.
- control the entry to the premises and limit the number of customers who are on the premises at any one time
- provide hand sanitisation products or hand washing facilities for people when they enter and leave the premises
- ensure any baskets or trolleys used by people on the premises are sanitised
- in order to remind customers of the need to maintain 2 metre distance and to wear coverings, display signs or other visual aids like floor markings, and make regular announcements
The requirement to control entry can be fulfilled in different ways depending on the nature of the retail premises and on any equipment available. In larger premises it is likely to mean either having a person on the door to control entry or some automatic means of limiting the number of people who enter. In both cases however, the number entering must be based on an assessment of the maximum number or people who can be present on the premises while being able to maintain at least a 2 metre distance between customers. The starting point for that assessment will be the floor space, however account will need to be taken of the fact that some parts of the premises are likely to be busier than others. Ventilation will also be a factor. Those responsible are encouraged to err on the side of caution in deciding on the maximum number of customers.
Small retail premises can control entry through a combination of use of signage and monitoring by staff who are inside the premises. In the smallest premises the most appropriate system of control of entry is likely to be that only one person is allowed on the premises at the time. Where customers can see whether somebody is present on the premises this can be controlled through the use of a sign. In other circumstances signage indicating that customers should only enter when another customer leaves should be deployed. At times where the premises is quiet this could be overridden by a member of staff indicating that the customer can enter.
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 IT equipment (laptops, monitors, keyboards), office furniture, mobile phones and facilitating communication across locations.
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 business needs because gathering is only permitted for work if reasonably necessary and there is no reasonably practicable alternative. 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 this. This includes people who are at increased risk or are clinically extremely vulnerable (who were previously advised to shield and who still need to take high levels of precaution), or because returning to the workplace would cause them severe anxiety. This is particularly the case where work would require them to be in regular or sustained contact with other people or to be share a poorly ventilated space for long periods.
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 may be 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. Some examples of this include provision of public facing essential services, factory settings, construction sites, the provision of health and social care services, retail, hospitality and delivery of events. Although physical distancing may be made easier by allowing some staff to work from home, reasonable measures must be put in place in the workplace to prevent virus transmission between workers and any others such as patients and members of the public who are also present.
Scope for physical distancing on premises is to an extent constrained by the size of premises; however, regardless of the size of the premises the starting point is that consideration should be given to how people could be kept physically apart and how close face to face interaction could be prevented or minimised.
The risk assessment required by the Coronavirus Regulations should establish the appropriate number of people who can be present and we recommend that that information should be publicly available publicly. There must also be specific controls at the entry and/or exit to premises to ensure that the numbers on the premises do not exceed the safe number. That will mean limiting access, organising the flow of people through the premises, design and planning of work and will almost certainly require measures to be put in place to help or make people stay apart. The regulations for retail premises now also require frequent reminders of the need to maintain a 2 metre distance where possible and wear a face covering. This should be done through signage and announcements made (where possible) over a tannoy.
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 will be unable to stay 2 metres away from a patient when giving treatment. However, they can stay 2 metres away from patients (as well as other medical practitioners and carers) for much of the time, such as while patients are 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:
- a requirement for retail premises and a reasonable measure for other regulated premises that there should be a control at the entry to the premises to limit 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,
- changing the layout of premises/ furniture to support physical distancing
- 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
When is it permitted to allow people to be within 2 metres of each other?
The Welsh Government advises all people who don’t live together to keep their distance from others wherever possible, and to not greet each other physically when they see each other. The risk of exposure to coronavirus remains real when in close proximity with others, especially when indoors.
However, in so far as the legal obligations under regulation 16 are concerned, a specific requirement to take all reasonable measures to maintain 2 metre distance between people indoors is limited in the following ways:
- those who live together are not required to remain apart as there is no additional risk of transmission between them;
- recognising economic and social reality in indoor hospitality settings and events in particular, at Alert Levels 1 and 2 groups of up to 6 people from different households may be within a 2 metre distance – though those who do so should appreciate that there is a risk of exposure to coronavirus in doing so and try and maintain distance where possible;
- in so far as maintaining a 2 metre distance between groups (households or groups of up 6 at Alert Levels 1 or 2) is concerned, all reasonable measures should be taken to maintain 2 metre distancing indoors, however there may be circumstances where other measures taken mitigate the risk that arises if they are within 2 metres.
In considering whether it is reasonable to maintain 2 metre distance indoors or physical distancing outdoors there are situations in which this is not practicable. 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
- in regulated premises and workplace settings where young children or people with complex needs are present who cannot understand the concept of physical distancing, and where the appropriate support from support workers may require closer contact e.g. to help a child or person who has fallen
- participating in activities where people may spend short bursts of time within 2 metres of each other, such as indoor team sports
- exceptions where close contact is necessary between workers and the users of services,
- taxis and some forms of public transport
- where dual working at less than 2 metres apart indoors 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 physical 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 younger children than on adults.
Finally, we recognise that maintaining physical distancing outdoors and 2 metre physical distancing indoors could place some businesses under significant commercial strain. Although protecting public health and maintaining public confidence should be the priority, businesses which are able to be open under the Alert Level in force, are able to operate shorter physical distancing if the cost implications of maintaining physical distancing are such that they would make the business unviable.
In all of these cases, it is vital that other reasonable measures are put in place to minimise the risk of exposure to coronavirus, as set out in the section below. Not maintaining 2 metre physical distancing does not mean no physical distancing. Maintaining as much physical distancing as is reasonable should still be the objective, taking into account other mitigations that are reasonable.
Similarly, it may be reasonable to maintain 2 metre physical distancing indoors in most circumstances, with going below 2 metres in certain areas or circumstances only. For example, going below 2 metres to carry out a treatment but maintaining it otherwise.
Outdoors, physical distancing will still be beneficial where it is reasonable, but the additional natural ventilation and other measures that may be taken could be sufficient compared with indoor events. The removal of all caps on the number of people who can gather outside in all settings will allow large scale outdoor events to resume including in open air sport stadiums or festivals. While the specific emphasis on 2m physical distancing has been removed in relation to these events, physical distancing should be part of the package of reasonable measures that organisers will be expected to consider and, in many circumstances, need to take. Where less, or no, physical distancing is (objectively) reasonable, additional mitigation should be put in place to minimise the risk of exposure to coronavirus.
The risk assessment should include consideration for what mitigating actions can be taken if 2 metre physical distancing indoors is not maintained on a premises or if physical distancing is limited outdoors. If taking other reasonable measures will not sufficiently mitigate the risk of exposure to the virus, this suggests that physical distancing is still required.
Ultimately, if the measures you can reasonably take are insufficient to mitigate the risks involved, Regulation 16 makes clear that reasonable measures may include ceasing to carry out certain activities and closing part of premises.
Although Regulation 16 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. This option will be particularly relevant at higher alert levels.
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 surface cleaning.
Another measure which is mandatory (unless there are strong reasons to the contrary) is to require staff and visitors in indoor premises that are public places to wear face coverings and also in other cases where, for example, 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 face coverings 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.
- gathering outdoors instead of indoors
- ensuring there is adequate ventilation of premises so that virus particles in the air do not build up over time
- testing people who attend premises or requiring proof of a negative test
- 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
- ensuring a responsible person is present for the duration of regulated gatherings and regulated gatherings for children to ensure that reasonable measures remain in place
- 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 (this is a requirement in respect of retail premises), including where possible requiring to enter through one door and exit through an other
- controlling the way people walk around premises
- controlling how people arrive and leave the premises to maintain physical distance between people outside the 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 activities where there is singing, chanting, shouting or the use of wind instruments unless extensive mitigating actions are in place
- 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.
Providing information to workers and others on premises or in a workplace is key to successful control of virus spread. Information may be given orally or in writing (most obviously in signage), and in line with the Equality Act in terms of formats available. Generally the information provided will need to:
- explain what measures have been taken to maintain physical distancing indoors 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 on face coverings)
- provide users of premises with information on the safe limit of people who can be on the premises
Some basic signage is available here - safety and physical distancing signs for employers and on the Business Wales website.
Collecting contact details
One of the reasonable measure referred to under regulation 16 is to collect contact information from people (including staff, customers and visitors) who have been at the premises and to retain this for 21 days. This helps to support Test, Trace and Protect and is another way of helping to reduce the spread of coronavirus. Taking these measures allows people to be contacted where they may have been exposed to coronavirus at the premises. This in turn allows them to be contacted and told to self-isolate and apply for a test.
Another reasonable measure is to ensure that the contact information collected is correct.
The use of the NHS Covid-19 app does not replace the legal requirement for businesses in Wales to collect information.
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 provides further information. 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 or required by law. 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 21(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.
If a person is required to self-isolate, and does not self-isolate due to the behaviour of their employer then this may result in the employer being issued with a fixed penalty notice of up to £10,000 and could face prosecution.
Relevant considerations to deciding whether measures are reasonable
When considering what measures are reasonable you may 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 and workforce confidence that due consideration has been given to the level of risk that they face. Employers should normally provide 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, it is hoped that 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.
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 regulations 16, 17 and 17A. 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 8 and 9 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.
In summary, persons responsible for premises, and who are required to take reasonable measures to minimise risk of exposure to coronavirus on the premises, should consider the following:
- Do people need to be physically present on the premises, or could alternatives such as home working or remote communications be used?
- Where people do need to be present on the premises, what risks of exposure to coronavirus (and resulting spread) have been identified? In other words where and when could people be exposed?
- What can be done to try to prevent people who have tested positive for coronavirus, who are experiencing symptoms associated with COVID-19, or who have had close contact anyone who has tested positive from being on the premises? This might include testing, asking questions that remind people of the requirements to self-isolate, and ensuring staffing policies do not force sick people into work.
- What can be done to keep people physically distanced on the premises? As a general rule close face to face interaction should be kept to a minimum. There is a specific requirement to keep people from different households, or - at Alert Levels 1 and 2 - groups of up to 6 people from different households, 2 metres apart indoors (unless other mitigating measure taken meet the purpose of minimising the risk of exposure to or spread of the virus). Limiting the number of people on the premises, controlling entry, and one-way systems will assist in enabling distance to be maintained.
- What can be done to use outdoor space instead of indoors on the premises? As there is considerably less risk of exposure to coronavirus outdoors what can be done to change the way in which premises are used?
- What can be done to improve ventilation indoors, either through using windows and natural draft or by use of mechanical ventilation systems?
- What can be done to minimise the duration for which people may be together on the premises, bearing in mind that virus particles accumulate over time in poorly ventilated area?
- What can be done to minimise close face to face interaction? This may include queuing systems, limiting use of toilets, controlling entry, and use of personal protective equipment such as face coverings?
- What can be done to improve hygiene? This should consider staff, customers and surfaces within the premises.
- What information is taken to ensure that people can be contacted if they may have been exposed to coronavirus on the premises? Are there ways this can be done to ensure information is accurate?