Employment Law Coffee Break: Managing Covid-19 in the workplace - some FAQs
Published on 17th Mar 2022
Welcome to our latest Coffee Break – this week we focus on the current position with Covid-19 and address some of the common questions arising.
Covid-19: What is the latest position?
The government announced back in February its plan for "living with Covid" in England, setting out a series of dates shaping the approach to managing Covid-19 going forward, including the end of the legal duty to self-isolate from 24 February (although the current guidance states people who test positive should "stay at home if you can and avoid contact with other people").
This week it has been announced that all remaining travel restrictions will be removed from Friday 18 March, removing the current requirement for people entering the UK to take a test or complete a passenger location form and the need for unvaccinated passengers to take a pre-departure test and a day two post-arrival test. On 24 March statutory sick pay (SSP) rules will revert to the pre-pandemic regime and 1 April sees the following further changes which employers will need to factor into their approach to managing Covid-19:
- The current government guidance which is still in place on self-isolation will come to an end; individuals will be encouraged to exercise personal responsibility and consider the risk they are posing to others.
- Employers will no longer be required to specifically consider Covid-19 in their health and safety risk assessments, instead this will form part of their wider responsibilities to provide a safe place of work.
- Lateral flow tests will no longer be free and most individuals will need to purchase them from a pharmacist or other retailer, unless they are provided as part of an employer funded scheme. Limited symptomatic testing will remain available for a small number of "at-risk groups" and free symptomatic testing will remain available to social care staff.
- The NHS Covid pass will no longer be recognised as a vaccine passport in the UK.
We now await the promised public health guidance which will apply from 1 April when the government's current working safely guidance comes to an end. It is hoped that this new guidance will provide greater clarity on the ongoing health and safety considerations for employers, although we expect the guidance to be high level and principles based and to put the onus on an employer to assess risk and put in place appropriate and proportionate measures to manage Covid-19 in the workplace. Employers must also remain mindful of the longer term impact for those who have had Covid-19 and continue to experience ongoing associated health complications, and will also need to think in their assessments about individuals with particular vulnerabilities to the virus.
How do we manage Covid-19 risks in the workplace now and in future?
With the government data showing a rise in Covid-19 cases across the country, employers are considering how they ensure that they comply with their health and safety duties towards employees with the move away from specific legal requirements, and government guidance urging personal responsibility. Until 1 April it is still a legal requirement for employers to explicitly consider Covid-19 as part of their health and safety duties and put in place measures to reduce the spread. However, from 1 April, Covid-19 will still be an important consideration for employers in ensuring the health and safety of their staff and in providing a safe place of work. As we have seen throughout the pandemic, it remains important for employers to regularly revisit their health and safety risk assessments to reflect the current circumstances and changing requirements. We are currently waiting for the promised public health guidance which will apply from 1 April and will need to be reflected in an employer's health and safety risk assessment going forwards.
Employers must consult employees on health and safety issues: consultation must be either direct or through a safety representative that is either elected by the workforce or appointed by a trade union. There is no one-size-fits-all approach as employers need to put measures in place to reflect the requirements of their specific workplace. Measures needing consideration will include: any social distancing required and use of face-masks, cleaning procedures, facilities for hand sanitising and providing adequate ventilation. With the ending of government guidance around self-isolation, any company requirements in this respect will also need to be considered. Consulting with staff will provide employers with a valuable opportunity to explain the risks and measures proposed and to gauge employee support in this respect, understand any concerns and identify whether any particular demographics in the workplace are affected.
One piece of guidance we expect to remain is for employees not to come to work if they have symptoms if at all possible. For those businesses where employees can work from home, we expect a shift from pre-pandemic practices where presenteeism sometimes led to employees coming to workplaces with infectious colds or flu. This is clearly more challenging for businesses relying on employees coming into a workplace, particularly where low paid or self-employed workers will suffer financially from not coming to work and employers should be considering their approach.
While many employers will hope that staff will comply with their internal measures, employers will need to carefully consider how to approach instances of non-compliance, particularly after 1 April 2022 when the more general health and safety guidance comes into play. In most instances, a discussion with the employee to set out expectations and explore any reasons for non-compliance will be the first step; disciplinary action is only likely to be appropriate where there is a serious breach and no mitigating circumstances.
How should we manage an employee who remains reluctant to return to work, particularly with the removal of restrictions?
While it is hoped that the consultation and communication which forms part of an employer's health and safety risk assessment will address many concerns that employees may have, there will still be some individuals reluctant to return to the workplace and these situations must be dealt with on a case-by-case basis. The first step will be to explore the background to their concerns which may arrive out of a particular vulnerability or medical condition and therefore require particular consideration and a look at whether any reasonable adjustments are appropriate, to avoid any unintended discrimination.
It is important to also remember that many employees have changed their pre-Covid working arrangements to account for the evolving requirements on home-working and other restrictions and reverting to the workplace may require further adjustments that may not be immediately possible to put in place. Some employees may experience anxiety and other mental health challenges on returning to the workplace and may need to make changes to their domestic and work routines. Others may have seen a positive impact on their wellbeing through homeworking and employers must remain sensitive to any discussions around these considerations, not only given the potential discrimination and employee relation issues but also with an eye on retention of staff and attraction of new talent. Any requests to work flexibly should be considered in light of the employer's flexible working policy and the statutory requirements.
Where an employee persists in refusing to return to the workplace without good reason, and once their issues and concerns have been fully explored, the employer may then need to consider taking disciplinary action.
Can we require an employee who tests positive for Covid-19 but is asymptomatic to stay at home and do we still have to pay them?
There is now no mandatory requirement to self-isolate following a positive Covid-19 test, although at present many employers are following the government guidance in their own internal rules which still recommends self-isolation for a specific period of time, even where an employee is asymptomatic and fit for work. Until 24 March, all employees who test positive for Covid-19 are eligible for statutory sick pay (SSP).
From 24 March, the position becomes more complex with the SSP rules reverting to the pre-pandemic position, in essence meaning that an individual will only be eligible for SSP if they are not fit for work. For those who are able to fully work from home while testing positive this may not present an issue, however for those who do need to attend the workplace to perform their job role, employers will need to consider carefully what their approach will be. While some employers are proposing to pay such employees some form of company sick pay, this raises potential issues around abuse of the system, as requiring proof of an employee's test result raises complex legal considerations. Employers will also need to factor in that tests will no longer be widely available free of charge from 1 April and therefore any employer policy requiring regular testing will need to factor in who will bear the cost of any testing being requested and how any non-compliance will be dealt with. The benefits of requiring testing should be balanced against the ability of the employer to enforce the policy and verify any results provided.
A change in any employer approach to testing and self-isolation should be factored into the employer's health and safety risk assessment and consideration given as to how any concerns can be addressed through other measures.
Employers should keep watch for further developments in this regard with the Confederation of British Industry calling on the government for more guidance on sick pay and the British Chambers of Commerce stating that guidance will be "critical" to address a range of scenarios that will be faced by businesses.
With the shift away from legal restrictions, but Covid-19 cases rising, is there more justification for requiring employees to be vaccinated?
Covid-19 has seen many employers struggle to meet business demands as a result of the pandemic; employers are therefore understandably keen to protect their workforce as much as possible from the on-going effects of Covid-19. While some employers may wish to encourage employees to be vaccinated and continue to participate in any ongoing booster programme, where an employee refuses, an employer who seeks to take action against an individual is likely to face significant risks - and requiring proof of vaccination has, in itself, complex considerations. The merits of any vaccination requirement need to be carefully considered against the backdrop of the government's own move away from mandatory vaccination in high risk settings which is likely to factor into the workforce perception of any employer-mandated position. At present most employers in the UK do not require mandatory vaccination.
It is clear that with Covid-19 infection levels again rising, the pandemic will continue to have an impact on the workplace and it will be important to ensure that managers are trained to deal with issues that arise and know how to respond sensitively and appropriately to minimise the risk of grievances and potential legal claims.
Our Employment and specialist Health and Safety teams will be happy to advise you on how the latest developments affect your business. Please do get in touch with your usual Osborne Clarke employment contact for support or Mary Lawrence, Partner in our specialist Health and Safety team.