Please note that the Covid-19 Response: Living with Covid-19 plan relates to England only, however the concepts discussed in this update will be relevant to the rest of the UK as restrictions are gradually eased.
Living with Covid – overview of changes in England
From 24 February 2022:
- the legal requirement to self-isolate following a positive test was removed and self-isolation support payments ended;
- workers have not been legally obliged to tell their employers when they are required to self-isolate; and
- routine contact tracing ended. Contacts are no longer required to self-isolate or advised to take daily tests.
Between 24 February 2022 and 31 March 2022 adults and children who test positive will continue to be advised to stay at home and avoid contact with other people in accordance with government guidance.
From 1 April 2022 the guidance will be amended and people with Covid-19 symptoms will be encouraged to exercise personal responsibility (just as those with flu are encouraged to be considerate to others).
From 24 March 2022 pre-pandemic Statutory Sick Pay ("SSP") rules apply. The SSP deemed incapacity provisions will no longer have effect and it will no longer be possible to claim SSP from the first day of Covid-19 related incapacity. SSP for Covid related sickness absence will be payable on the fourth qualifying day as with other sickness absence. Final claims for the Statutory Sick Pay Rebate Scheme for small employers must be made by 24 March 2022.
From 1 April 2022 the government will:
- no longer provide free universal symptomatic and asymptomatic testing;
- remove the health and safety requirement for every employer to explicitly consider Covid-19 in their risk assessments;
- replace the existing set of "Working Safely" guidance with new public health guidance.
Testing - phase out or hard stop?
The legal obligation on employees to tell their employer that they have tested positive ended on 24 February 2022. In addition from 1 April 2022 free testing will no longer be provided by the government.
The general trend seems to be that testing is on the decline. So do employers phase out testing or provide a hard stop?
The government has clearly taken the decision that wide scale testing is no longer necessary and employers could follow suit. There is a large cost implication in funding workplace testing, particularly where there is a vast workforce. Tests are likely to cost approximately £2 to £5 for an individual test and £20 for a pack of seven.
Many employers opted to take up the workplace testing, often as part of a wider health and safety strategy in order to help keep the workplace safe. Testing has provided employees with some much needed reassurance at a time when employers were struggling to get employees back into the workplace. Employers may wish therefore to consider phasing testing out whilst confidence is built up among employees returning to the workplace.
Sickness absence - a balancing exercise of rights, risk and finances
As legal restrictions are removed many employers are grappling with how to handle sickness absence as we enter this next chapter of the pandemic. The government is consulting with employers and businesses to ensure the new public health guidance continues to support them to manage the risk of Covid-19 in the workplace. Following the guidance will be vital for employers and should help minimise the risk of claims. It is likely that the guidance will encourage employers to enable employees with Covid-19 (or perhaps even suspected Covid-19) to work from home. Where this is not possible – as if often the case - it is less clear what employers should do.
Possible scenarios: Too sick to work, mild symptoms and asymptomatic
If an employee is too sick to work, it is relatively straightforward – the usual sick pay provisions should apply, including entitlement to sick pay.
However it is less clear cut when an employee has mild symptoms. Will employers ask them to take a test? Who will pay for the test?
Then we have people who have Covid-19 and are asymptomatic. After 1 April 2022 the reality is that employers are less likely to hear of such cases once testing is no longer free – unless of course employers are funding workplace testing.
There may be some scenarios when employers will hear, for example if someone has tested to visit a vulnerable relative. Employers will need to make decisions over what to do in such cases. If the employee can work from home the situation is more straightforward. If the employee cannot work from home the situation is much more complex, particularly with regard to sick pay. It is hoped that government guidance will help shed light on what action employers should take.
If the employee is ready, willing and able to work (for example in cases of an employee with mild symptoms or an asymptomatic employee) but the employer does not want them in the workplace, what pay should the employee receive? The employee is not incapable of work and if they present themselves as ready, willing and able to work they are arguably entitled to full pay. Putting full pay to one side, would the employee be entitled to SSP? A day of incapacity for SSP purposes is defined as "A day on which the employee concerned is, or is deemed in accordance with regulations to be, incapable by reason of some specific disease or bodily or mental disablement of doing work which he can reasonably be expected to do under the contract". The extent to which this definition may cover someone with mild Covid-19 symptoms or even someone who is asymptomatic is not clear.
Employers will have to consider carefully what approach they take to sick pay. On the whole employees cannot afford to take much (if any) time off work unless they are on full pay. The on-going struggle of balancing employees' rights, the financial burden on the employer and Covid risk in the workplace continues.
Returning to the workplace – looking after everyone
Employers will need to consider what steps to take with regard to those who are vulnerable to Covid-19 going forward as workforces are attempting to get back to some kind of normal, often encouraging people back to the workplace. With the withdrawal of legal restrictions vulnerable people may feel overly exposed. Employers should have open and transparent communication with the workforce to try and gather as much information as possible to understand what additional protection may be required. In such scenarios employers will inevitably find themselves processing both personal and special category data. Data protection responsibilities must be carefully considered.
The toll the pandemic has taken on people's mental health cannot be underestimated. Employers should listen to any concerns and try and allay any fears by explaining what steps have been taken to keep the workforce safe.
With any return employers will need to consider:
- Potential disability issues and the need for reasonable adjustments.
- Disputes of "work place" - employers will have to be mindful as to whether contractual "place of work" clauses have been varied during the course of the pandemic.
- Flexibility requests – as employees have become very used to a more flexible way of working over the past two years. Employers will need to be mindful of potential discrimination issues when considering requests for flexible arrangements.
The key is to be open and transparent with the workforce, providing as much information as possible over the plans for the future way of working. Taking a collaborative approach will inevitably improve employee relations, reduce the likelihood of any claims and foster loyalty across the workforce.
Risk assessments – appetite for risk
From 1 April 2022 the government will remove the health and safety requirement for every employer to explicitly consider Covid-19 in their risk assessments. The government has stated that the intention is to empower businesses to take responsibility for implementing mitigations that are appropriate for their circumstances. In reality, that has been the law all along – this does not change.
Employers are left with somewhat confusing and contradictory guidance. It is clear according to all the long established safety principles that employers only need to record in writing control measures from significant risks arising out of or in connection with their work activity. Covid-19 generally doesn't fall into that category because it is something that arises in society and the risk posed in most work places is no greater than it is anywhere in the wider world. Just as employers are not required to guard against employees getting the flu or any other respiratory disease, following the long established guidance would lead employers to conclude that they do not need to for Covid either.
Given that it has been the case that the English government expected (and others mandated) a Covid risk assessment, it means that not doing one is likely to be an unnecessarily risky approach. When conducting the risk assessment, employers must think carefully about what is being recorded and set the risk assessment against the standard in society, ie is there a high, medium or low risk of getting Covid-19 when compared to society at large – if the risk is no greater, even if it is high in the wider world, the risk arising out of or in connection with the employer's work should be low (or maybe even none). Whilst it is recommended continuing to have a Covid-19 risk assessment to help demonstrate that the employer has considered the risk to be low or none from their work activity, consideration should be given to referencing that the employer's position is consistent with government guidance taking care not to mandate measures that it will be near impossible to step back from in time. Any risk assessments after 1 April 2022 must consider the much anticipated public health guidance to support on control measures
Although the Living with Covid strategy applies to England only, the challenges employers will face as we deregulate Covid-19 are universal. As always, employers will need to continue to be dynamic and able to diversify. Clear and transparent communication with the workforce is of paramount importance. As the government hands over the reins to personal responsibility, employers will need to step up yet again and motivate, support and unify the workforce.
The public health guidance which should be issued imminently will be essential for employers as they navigate the next few months.
We will keep you updated.
If you have any concerns with regard to the issues raised in this Legal Update please do not hesitate to get in touch.
Please look out for our webinar once the new public health guidance is published.