On 21 February 2022, the UK Government announced its plan to end remaining COVID-19 restrictions in England. These include, from 24 February, the removal of the legal requirement to self-isolate following a positive test; and the requirement to wear face-coverings in public spaces and on public transport; and, from 1 April, the withdrawal of free testing. The enhanced statutory sick pay arrangements will also end on 24 March. Different rules will apply in Scotland and Wales. With these changes, employers now must consider what requirements they want to apply to the workplace to keep their employees safe.
Can an employer require employees to self-isolate where they test positive or where they are a close contact of someone who tests positive?
From 24 February there is no legal duty to self-isolate and employees are no longer under a legal duty to notify their employers that they have the virus. However, the Government has advised that individuals who test positive should stay at home and avoid contact with others for at least five full days.
An employer has a duty under statute and common law to take reasonable steps to provide a safe working environment for employees and to prevent foreseeable harm. Under health and safety legislation an employer should carry out, at least once a year, a risk assessment to determine any risks in the workplace. Although from 1 April there will no longer be a legal requirement to carry out a specific COVID-19 risk assessment, COVID-19 will be one of the factors that an employer is likely to take into account in carrying out their general health and safety risk assessment.
After carrying out the risk assessment, employers should then set out guidelines for whether people should be isolating before coming into the workplace.
What should be the rules regarding testing?
One area of difficulty with suggesting that employees continue to self-isolate is that employees may not be aware that they have COVID-19 if they are not experiencing any symptoms. From 1 April the NHS will no longer provide free lateral flow tests. Rather, the public will have to pay for any COVID-19 tests. Only certain individuals will maintain access to free tests. Employers should consider whether they want to provide tests to employees to encourage testing before attending at the workplace. Employers should also bear in mind the data protection issues arising from processing any sensitive personal data regarding testing or vaccination status and whether employers have a lawful basis for processing such data in light of the changes to the rules.
What sick pay will employees pay?
The Statutory Sick Pay (SSP) legislation that was amended for COVID-19 is coming to an end and will revert to pre- pandemic rules. From 17 March employers will no longer be able to claim back SSP for absences where people were self-isolating. Employers will have until 24 March to submit any new claims or amend any existing claims. From 24 March employees will only receive SSP if they are absent from the workplace as a result of illness and absence for self-isolation will no longer be covered. In addition, the waiting period of four days will be reinstated (it will no longer be available from day one of the absence).
If there is no statutory pay available, employees may be less willing to self-isolate. Employers should determine what payments they are going to make to any members of staff who are absent because of COVID-19 related reasons. This should be set out in any guidance about attending the workplace.
What are the rules regarding the Government guidance on “working safely during COVID-19”
From 1 April the Working Safely guidelines will be reviewed. However, as set out above, employers will continue to be required to carry out their general health and safety risk assessment to identify workplace risks and to take steps to minimise any risks. This will mean that employers should consider still having in place guidance on how to minimise the risk of infection, including increased cleaning, ventilation and potentially still wearing face coverings should it still be considered necessary.
What about staff who don’t want to attend the workplace?
There will be staff who are more nervous than others once the restrictions have been lifted. For example, those who are clinically vulnerable or who live with someone who is clinically vulnerable may be nervous about attending the workplace or travelling by public transport. When carrying out any health and safety risk assessment the employer should bear in mind these specific categories of employees and what steps can be taken to minimise the risks. This may be by allowing them to work from home more regularly or allowing them to travel in at less busy times. The same issues may well apply in relation to pregnant women.
What should employers be doing now?
We would advise that employers should be setting out their approach to minimise risks for employees although there may be further changes after 1 April. Employees are bound to have questions about the steps that employers are taking to keep them safe and employers need to be ready to deal with any issues that arise.