Adjusting to new normal
On 24 March 2022, the rules on statutory sick pay (SSP) returned to normal and the special arrangements for covid-19 ended. This represents another milestone in the gradual removal of legal measures that were introduced to tackle the pandemic. However, with infection levels and hospital admissions increasing sharply, it is still not the time for employers to relax.
The Living with Covid Strategy, which was published in February 2022, gave employers more discretion over how they manage the risks of covid-19 in their workplace.
Since the withdrawal of the special rules on SSP relating to covid-19, SSP is payable only from the fourth day of a period of incapacity. It is no longer payable to employees who test positive but are not incapacitated, or to any isolating close contacts.
Until 1 April 2022, employers must continue to follow the sector specific workplace safety guidance. This will be replaced with new public health guidance with effect from 1 April 2022; however, the new guidance is yet to be published. Employers must continue to meet their statutory duties,(1) including that of providing a safe place of work. What employers need to do in order to satisfy this obligation will vary depending upon the working environment. Complying with the guidance is likely to be the minimum needed to comply with the law.
News stories that have emerged over the past few weeks have illustrated how difficult it can be for employers to make judgment calls about what "Living with Covid" means for their organisation.
There was a swift retraction by retailer Wilko of its internal memo in which it advised staff that, if they felt well enough, they could continue to work in store despite having covid-19. Such a policy may no longer be unlawful, but until 1 April 2022, it remains a breach of government guidance. The strong reaction against this approach demonstrated that it was also out of step with society's expectations around risk and what is currently deemed to be reasonable.
On the other hand, there have been reports that care home staff in Somerset who have covid-19 are being permitted to continue working. This appears to be the outcome of an assessment that the risk posed to vulnerable residents by understaffing is greater than that posed by covid-19. However, employers in other sectors need to be careful about the conclusions that they draw from this. The residents' urgent and ongoing need for care, and also the use of personal protective equipment in this setting, would be factors that are not commonly considered in other working environments.
Risk assessments are the best way for employers to weigh up the risks in their workplace. Particular care must still be taken to protect those with specific vulnerabilities. The roll-out of the spring booster programme is a timely reminder that certain groups continue to be at heightened risk from infection.
The rules around risk assessments are also set to change on 1 April 2022, and this could leave employers in an uncertain position. Frances O'Grady, the general secretary of the Trades Union Congress (TUC), has recently written to Kwasi Kwarteng, the business secretary, raising concerns about the upcoming removal of the obligation on employers to expressly consider covid-19 in their risk assessments. The TUC's view is that this change sends mixed messages to employers that remain bound by their statutory duties that require suitable and sufficient risk assessments to identify workplace risks. It is hoped that the new guidance will provide clarity on this point.
Although spring may be in the air, so too is covid-19. While the risk of serious illness and death has decreased significantly, the lessons learnt over the past two years about managing covid-19-related risks remain relevant.
Employers should continue to ensure good infection control through ventilation, cleaning and hand hygiene. Maintaining such measures in the workplace has wider benefits, as recent research on the dramatic reduction in stomach bugs shows, and can therefore help more generally with maintaining staff health and attendance levels.
From 1 April 2022, free covid-19 testing for everybody will end, and employers will need to decide if they are going to fund any kind of workforce testing scheme – for example, as a temporary measure. Employers will also need to decide when contractual sick pay will be payable, and this will be a key signal to staff about when they should stay away from the workplace. Clear policies and good communication remain vital in ensuring that staff understand what is expected.
For further information on this topic please contact Laura Farnsworth or Rebecca Jobling at Lewis Silkin by telephone (+44 20 7074 8000) or email ([email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.
(1) Further information is available here.