Whilst the legal requirement to self-isolate following a positive test for COVID-19 ended on 24 February in England, the legal requirement on employers to provide a reasonably safe place of work remains. As mandatory rules begin to be replaced with guidance and advice, the burden is now increasingly on employers to decide and consider what approach they will take to living with COVID-19 and whether they will implement any rules or policies within the workplace. The key question now for employers in the UK is how to strike a balance between living with COVID-19 and the duty to provide a safe workplace. In this article, we look at some of the key issues for employers.
A reminder of the changes
In England, the government has announced that:
From 24 February 2022
- There is no legal requirement to self-isolate following a positive test for COVID-19.
- Fully vaccinated close contacts of those who test positive for COVID-19 are no longer required to take daily lateral flow tests for seven days.
- Close contacts of those who test positive for COVID-19 and who are unvaccinated, or are not fully vaccinated, are no longer required to self-isolate.
- Self-isolation support payments are no longer available.
From 24 March 2022
- The COVID-19 provisions relating to Statutory Sick Pay (SSP) will end. The "normal" rules of SSP will apply to those with COVID-19 and SSP will not cover someone who is self-isolating because they have come into contact with someone testing positive for COVID-19.
From 1 April 2022
- Universal free testing will end. Only limited and targeted free testing will remain.
Whilst equivalent measures have not been announced in Scotland, the Scottish government has stated that it will publish a "detailed transition plan" which will outline how Scotland intends to deal with COVID-19 measures going forward. Employers across the UK should therefore now consider the implications of these changing approaches for how they manage and deal with COVID-19.
Implications and considerations
What to do when an employee tests positive for COVID-19
The obvious choice for those who can work from home, and are well enough to do so, is to require that employee to work from home for a period of time. However, this situation is less straightforward where the employee cannot work from home.
Ultimately, it is a decision for the employer to make. Employers are free and able to implement stricter rules than governments. For example, an employer could implement a policy that stipulates that any person who tests positive for COVID-19 or is displaying any symptoms works at home (where possible) or does not attend the workplace for a specified period of time.
What to do about pay
Inevitably, any policy requiring an individual who cannot work from home to not attend the workplace will lead to a discussion regarding pay. Currently, there are specific COVID-19 provisions relating to SSP which allow an employee who tests positive for COVID-19 or is a close contact to claim SSP from day one of a positive test/isolation. However, these provisions are being revoked and the usual SSP provisions will apply from 24 March. Under the usual provisions, the employee will only be entitled to SSP on day four and only if they are too unwell to work. Therefore, if an employee is asymptomatic or suffers only mild symptoms and cannot work from home, they will be ineligible for SSP and the employer will be required to pay such an employee in full.
What to do about testing
As of 1 April 2022, the UK government will no longer provide universal free testing in England. As it stands, many workplaces across England have asked employees to take a test before coming into the workplace. Come 1 April, employees are likely to be less willing to do so if they need to pay for a test.
Rather than expecting their employees to bear the cost of testing, employers may decide to procure testing kits and make these available for their employees in certain circumstances (for example, if someone in their household has tested positive).
What to do about workplace policies
Currently, employers must undertake COVID-19 specific risk assessments. After 1 April, it is within the employer's discretion as to whether to continue with COVID-19 specific risk assessments or whether to incorporate COVID-19 into their general risk assessments. In making that choice, it is important to remember that employers are still obliged to ensure the workplace is safe.
Employers can use such risk assessments to inform their decision-making processes moving forward. As part of this, employers should consider whether or not to retain softer measures within the workplace, such as social distancing rules, sanitising stations and face masks within certain areas. Such measures may help to reassure employees that the workplace is safe and encourage them to return to the workplace.
The UK government is expected to replace the current "Working Safely" guidance in April as part of the new strategy for living with COVID-19. Employers across the UK should review the renewed guidance when it is published and consider how it applies to them specifically.
In summary, whilst COVID-19 rules in England have disappeared, the risks to both employees and employers remain. Employers across the UK face difficult decisions in light of the new rules and further relaxation of remaining rules. Employers should prepare for these challenges through engaging with their workforce, developing and communicating clear workplace policies to deal with COVID-19 and adapting to new laws, guidance and experiences as these challenges play out in workplaces across the UK.