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Living With COVID 19 | Employment Law Update

What is changing?

On 21 February 2022 the Prime Minister announced the following;

From 24 February 2022 the Government will:

  • Remove the legal requirement to self-isolate following a positive test. Adults and children who test positive will continue to be advised to stay at home and avoid contact with other people for at least 5 full days and then continue to follow the guidance until they have received 2 negative test results on consecutive days.
  • No longer ask fully vaccinated close contacts and those aged under 18 to test daily for 7 days, and remove the legal requirement for close contacts who are not fully vaccinated to self-isolate.
  • End self-isolation support payments, national funding for practical support and the medicine delivery service will no longer be available.
  • End routine contact tracing. Contacts will no longer be required to self-isolate or advised to take daily tests.
  • End the legal obligation for individuals to tell their employers when they are required to self-isolate.
  • Revoke The Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations.

From 24 March 2022 the Government will:

  • Remove the COVID-19 provisions within the Statutory Sick Pay and Employment and Support Allowance regulations

From 1 April 2022 the Government will:

  • Remove the current guidance on voluntary COVID-status certification in domestic settings and no longer recommend that certain venues use the NHS COVID Pass.
  • Update guidance setting out the ongoing steps that people with COVID-19 should take to minimise contact with other people. This will align with the changes to testing.
  • No longer provide free universal symptomatic and asymptomatic testing for the general public in England.
  • Consolidate guidance to the public and businesses, in line with public health advice.
  • Remove the health and safety requirements for every employer to explicitly consider COVID-19 in their risk assessments.
  • Replace the existing set of ‘Working Safely’ guidance with new public health guidance.

What does it mean for employers?

Employers still have a duty of care and a legal requirement to ensure they are providing a safe place of work.

We would suggest risk assessments and current policies are updated to reflect the Government’s guidance and the information provided around the reduction in risk posed by COVID-19.

Employers should continue to follow the Government’s working safely guidance (Working safely during coronavirus (COVID-19) – Guidance – GOV.UK (www.gov.uk)) until 1 April 2022.

Can we continue to require employees to test for COVID-19 before attending the workplace?

Yes, you can still continue to have your own rules and policies on testing, subject to our previous advice on workplace testing. However, it is unlikely to be reasonable to introduce workplace testing as a new policy at this stage.

You should keep your testing policy under review and bear in mind that free testing will end in England on 1 April 2022 so it is likely that any continued requirement to test after this date will need to be at the employer’s cost.

Can we still require employees to self-isolate if they have COVID-19 symptoms or if they test positive?

Whilst it won’t be a legal requirement, during the period between 24 February and 1 April 2022, the Government are advising that people who test positive should stay at home and avoid contact with other people for at least 5 full days, and then until they have received 2 negative test results on consecutive days.

On that basis we consider that asking people not to attend work in these circumstances would be reasonable and justifiable, and arrangements should stay in place in terms of pay during periods of isolation, whatever they may be in your organisation at the moment.

What about paying employees if we require them to self-isolate?

We consider current arrangements can stay in place until 1 April 2022, however things will get tricky when SSP for self-isolation is removed and when the guidance ceases, and at that time a business will need to have sound justification for refusing to allow someone to attend the workplace if they test positive or display symptoms of COVID-19.

If employees can work from home without any detrimental impact, then this will be easier to navigate. For those who can’t work from home, if you do continue to have a requirement for employees to self-isolate from 1 April, then you should communicate fully your rationale and policy with your employees. Where an employee is ready, willing and able to perform work in accordance with their employment contract, there is an implied term that the employer has an obligation to pay wages, unless there is a contractual right not to do so. Most contracts of employment do not provide for such scenarios and so it is likely the employee will be entitled to receive full pay if they are required to self-isolate.

The Government has said it will update the guidance for employers from April and so there will be a need to review your approach in due course.

What if employees do not feel comfortable with the new guidance and refuse to attend work?

As always, you should be considerate and sympathetic to those employees who are struggling with anxiety or concerns around COVID-19 risk.

You should have open dialogue with employees and try to address concerns where possible by making adjustments or arrangements to alleviate any fears. As the risk profile for COVID-19 changes, and society moves on, it will become less reasonable for employees to refuse to attend work and a conversation may need to be had around the employee’s future with the business. You of course need to be mindful of any health concerns that may amount to a disability under the Equality Act 2010 and consider any reasonable adjustments which could be made and follow a fair process. Our advice should be sought if you are considering instigating disciplinary or capability proceedings or terminating an employee’s employment in such circumstances.

What if an employee who has tested positive attends work against our requirement for them to stay at home?

If an employee acts in breach of your rules, then you are dealing with a potential disciplinary situation (like any other misconduct issue) which could attract disciplinary action, subject to the circumstances of each case.

In order to be in the best position to tackle any rule breakers you should ensure your policies surrounding COVID-19 are clear and are communicated to all employees regularly.

Make sure you take our advice if you are considering disciplinary action in these circumstances.

We anticipate that this phase of the COVID-19 pandemic will bring new challenges for employers and as always we are here to help with any situations you are navigating.