Government’s plans: “Living with COVID-19” – implications for non NHS health and social care employers

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Government’s plans: “Living with COVID-19” – implications for non NHS health and social care employers

Published 7 March 2022

On 21 February the Prime Minister announced the Government’s plans to remove the remaining coronavirus (COVID-19) legal restrictions in England from 24 February 2022, and set out its plans in Living with COVID-19. (See details in table below).

Nicola Sturgeon has also unveiled plans for Scotland, which include an end to various restrictions from 21 March 2022. The Welsh government has said that current level of protections will remain in place for the next three weeks but all legal measures are scheduled to be removed from 28 March 2022 if the situation remains stable. Northern Ireland’s remaining COVID-19 restrictions have recently been revoked and are now guidance only.

Since the Prime Minister’s announcement the UKHSA has published additional guidance for the management of staff and exposed patients or residents in the health and social care settings. The guidance qualifies the Living with COVID-19 plans for the health and social care sector and clarifies that in the main the advice for staff members has not changed.

Self-isolation

Although there is no longer a legal requirement for people with COVID-19 to self-isolate, the public health advice for people with any of the main symptoms of COVID-19 or a positive test result is to stay at home and avoid contact with other people. Due to the higher risk nature of health and social care settings, the advice for staff members working in these settings has not changed.

In line with previous guidance, the updated UKHSA guidance sets out that health and social care staff who have tested positive for COVID-19 should not attend work until they have had two negative LFD test results taken 24 hours apart. The first test should not be taken before day 5 after their initial positive test. Managers and staff members who have been in contact with someone who has tested positive should also adhere to the UKHSA Guidance regarding self-isolation. Under this guidance the majority of health and social care staff who are contacts will be able to continue in their usual role, provided they are not exhibiting any symptoms.  However, if the staff member works with patients or residents who are especially vulnerable to COVID-19, a risk assessment should be undertaken, and consideration given to redeployment during the 10 days following their last contact with the case.

Pay

The Living with COVID-19 document states that from 24 March the current statutory sick pay (SSP) rules in relation to COVID-19 absences will come to an end and we will return to the pre-pandemic position. If the employee has COVID-19 and is isolating they will be entitled to SSP from day 1 of absence until 24 March.  From that date they will only be entitled to SSP from day 4, and only if they are too unwell to work. 

To avoid workers coming into work when they have tested positive for COVID-19 employers may wish to consider extending company sick pay.  However SSP, and usually company sick pay, will not be payable if the worker feels well, for example if they have COVID-19 but are asymptomatic or have mild symptoms.  In those circumstances, if an employer requires the employees to stay at home but they are able and willing to come into work then they will need to be paid full pay.

Testing

Current testing protocols should continue for health and social care staff until further guidance is received from the UKHSA and the DHSC.

In the Living with COVID-19 document the Government stated that they will stop free universal symptomatic and asymptomatic testing for all on 1 April.  However, they indicated that free symptomatic testing for social care staff and a small number of at risk groups will continue post that date.  It is unclear at this stage whether tests will be provided to continue routine LFD testing.  We are expecting further detail in March on the ongoing testing protocols which will be applicable for staff.

Depending on what is provided by the Government employers may wish to consider whether it would be beneficial and cost effective to provide workplace testing for employees in order to encourage employees who display symptoms to test and also to screen asymptomatic employees. Such an approach will be costly, but this needs to be considered against the organisation’s health and safety obligations, risk assessments, sickness absence and pay policies.  In particular the organisations approach to testing and paying for tests will need to be considered in tandem with pay policies in order to incentivise employees to continue testing.

Mandatory vaccination of staff

As set out in our recent alert, on 15 March the Government will revoke the Regulations imposing the requirement on CQC care homes to ensure that individuals entering their premises are fully vaccinated, unless otherwise exempt.  Revocation of the Regulations does not mean that health and social care employers who wish to retain a mandatory vaccination policy for all (or staff in some roles) for health and safety reasons, cannot do so – however they need to justify such a policy and consider whether it is proportionate. It is also still possible to insist on vaccination for new staff provided there is justification for it. Please see our alert for further details.  This will, of course, need to be kept under review and balanced against any future staff shortages in the sector and potential difficulties in recruiting vaccinated staff. 

What does this mean for employers?

Employers will need to keep abreast of developments as the Government continues to ease the country out of restrictions.  Employers will need to consider their testing, pay and vaccination policies in the round given their interdependency. Employers should ensure they are communicating on an ongoing basis with their staff so everyone is clear what is required of them and concerns can be dealt with.  We will update you as soon we have more information on the above issues.

Timetable of removal of restrictions for the public in England, as set out in “Living with COVID-19"

From 24 February 2022

  • The legal requirement to self-isolate after testing positive or for certain close contacts will end and be replaced by guidance. The guidance reflects the current mandatory requirement to isolate for a minimum of 5 days after a positive test and then to continue to do so until the individual has two negative test results on consecutive days. This advice will remain in place until 1 April. There will be specific guidance for staff in particularly vulnerable services, such as adult social care and healthcare. 
  • The legal obligation for individuals to tell their employers when they are required to self-isolate will end.

From 24 March 2022

  • The current statutory sick pay (SSP) rules in relation to COVID-19 absences will come to an end and we will return to the pre-pandemic position. This will mean that SSP will not be available for isolating asymptomatic employees. The right to claim statutory sick pay from the first day of COVID-related absence will also be removed, meaning that those ill with the virus will only be paid from the fourth day they are off work.

From 1 April 2022

  • The Government will no longer provide free universal symptomatic and asymptomatic testing for all. There will be some limited ongoing free testing, including limited symptomatic testing available for a small number of at-risk groups (further details on which groups will be eligible to follow) and free symptomatic testing for social care staff.
  • The Government will update guidance to set out ongoing steps people with coronavirus should take to minimise contact with other people.
  • The health and safety requirement for every employer to explicitly consider coronavirus in their risk assessments will be removed.

 

Authors

Zoe Thomas

Zoe Thomas

Leeds

+44 (0)113 251 4884

Joanne Bell

Joanne Bell

Manchester

+44 (0) 161 934 3179

Hilary Larter

Hilary Larter

Leeds

+44 (0)113 251 4710

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