Living with COVID-19 – implications for employers

Published 24 February 2022

The Government has announced its plans to remove the remaining coronavirus (COVID-19) legal restrictions in England from today, 24 February 2022, and has set out its plans in Living with COVID-19.

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 it could remove its remaining COVID-19 restrictions at the end of March and is expected to announce its plans in the next couple of weeks.  Northern Ireland’s remaining COVID-19 restrictions have recently been revoked and are now guidance only.

In this article we look at the timetable for change and the implications of the changes for employers in England.

Timetable in England

What are the implications for employers?

The duty to provide a safe place of work

Employers need to strike a balance between living with coronavirus but at the same time ensuring the safety of staff. The risk of COVID-19 may have reduced but it has not gone away and employers still are under a duty of care to provide employees with a reasonably safe place of work. The Government has now put the onus on individuals and businesses to implement the measures they think are necessary in light of their particular health and safety risk profile, rather than mandating specific rules.  In light of this employers should update their risk assessments and decide whether they wish to retain some of the COVID-19 safety measures in the workplace, such as social distancing and face-coverings.  Given the other changes outlined in the Living with COVID-19 plan it may be that employers need to do more than they do currently to protect the health and safety of their workforce.

Employers should also make sure they explain the risk assessment to employees and communicate what steps have been taken to make the workplace COVID-secure. This will be essential for employee engagement and also for re-assuring employees (including vulnerable employees) who may be reluctant to return to the workplace.

Can employers continue to ask employees to isolate if they test positive?

Whilst the mandatory requirement to isolate will end from 24 February the Government guidance, in place until 1 April, will be to isolate for a minimum of 5 days. The Living with COVID-19 document also states that “those who test positive should avoid contact with anyone in an at risk group”.

As part of the measures to keep employees safe and ensure business continuity it is open to employers to implement stricter rules than the Government requires. For example, employers could stipulate that individuals who test positive for coronavirus and/or who are displaying symptoms of coronavirus are required to work from home for a specified period of time.  This will obviously be more complicated in organisations where substantial amounts of the workforce are unable to work from home.  If the employee has COVID-19 and is isolating they will be entitled to SSP from day 1 of absence until 24 March, when they will be entitled to SSP from day 4, but only if they are too unwell to work.  To avoid workers coming into work when they are ill 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. An assessment of whether it is worth incurring this additional cost (and continuing to have more workers out of the workplace) will involve consideration of the employer’s particular workplace, workforce and risk assessment.

Testing

Employers should also consider whether they will continue to ask workers to inform them when they test positive.  An additional complication of the above approach is that the Government will end free testing for the general public from 1 April. Before that date employers may therefore wish to consider whether it would be beneficial and cost effective to provide (or continue 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 an organisation’s sickness absence and pay policies.

Vulnerable employees

Employers should continue to consider the needs of employees at greater risk of COVID-19.  Workers who are clinically vulnerable or pregnant employees may be reluctant to come into the workplace (and potentially travel on public transport to get there) in light of the end of the legal requirement to isolate. Employers will also wish to manage the potential employment claim risk of employees asserting that they will not work if they reasonably believe that they are in “serious and imminent danger”. There has been a rise in these types of claims during the pandemic. Vulnerable employees may be concerned that the lack of legal rules and changing societal approach is likely to result in individuals attending the workplace while either positive for coronavirus or showing symptoms. Employers can challenge that reasonable belief if they are meeting, and where possible exceeding, their health and safety obligations.

Employers should therefore continue to identify at risk individuals, such as pregnant women and those who are clinically vulnerable and who may be classed as disabled under the Equality Act. Specific risk assessments should be carried out and occupational health consulted to consider whether further health and safety measures and/or reasonable adjustments are required for them. Options could range from allowing working from home, to providing a separate area to work in the workplace, to staggering start and finish times so that vulnerable workers can commute during less busy times.  Although from 1 April employers are not explicitly required to consider COVID-19 as part of risk assessments you still have an overriding duty to identify workplace risks and reduce them to the lowest level possible, including a specific duty to do such risk assessments for pregnant workers.  Where possible, employers should adopt a considerate and flexible approach to returning to the workplace and address individual concerns when raised.

Employers may also have staff who live with someone who is clinically vulnerable and therefore may be reluctant to come into the workplace.  You do not owe a duty of care to people who live with your employees but, in some cases, employers may decide to offer flexibility to these employees.

In general, across the workforce, employers may see a rise in applications for flexible working as employees adjust to another “new normal”.

Conclusion

The Living with COVID-19 plans means employers need to consider a number of strategic questions and keep these under review as the law, guidance and pandemic develops. Employers should engage staff and communicate clearly so that everyone is aware of what will be expected of them over the coming months.

We are advising businesses regularly in this developing area. If you would like to discuss your specific circumstances please contact your usual DACB contact.