Living with Covid-19 and advice for employers

From the 1 April 2022, those with Covid-19 are encouraged to exercise personal responsibility in line with the Government’s Living with Covid-19 in England plan.

Following the phasing out of self-isolation legislation in favour of government guidance and advice, employers are being forced to determine and examine how they will deal with Covid-19 and whether they will apply any of their own rules or policies in their workplace.

Employers in England are having to find a balance between living with Covid-19 and their responsibility to create a safe workplace.

What changes have been made?

As of 24 February 2022, employees were no longer required to self-isolate if they tested positive for Covid-19, or if they have been in close contact, regardless of vaccination status. However, the Government strongly advised people to self-isolate for five full days, and until they received 2 negative test results on consecutive days.

From 1 April 2022, Government guidance is now focused on encouraging people who have symptoms of Covid-19 – or have received a positive test result – to exercise greater personal responsibility, try and stay at home, and avoid contact with others. This is in an attempt to protect those who are most at risk from Covid-19.

SSP

• Those with Covid-19 may still be eligible for Statutory Sick Pay (SSP) subject to the normal conditions of SSP. Employees can receive SSP from the fourth day they are off sick, and when needed must provide you with notice and proof of illness. SSP will no longer be payable to employees who test positive but are not incapacitated, nor to any self-isolating close contacts.

Testing

• As of 1 April, free symptomatic and asymptomatic lateral flow (LFT) and PCR tests have ceased but care home residents, hospital patients, and other vulnerable groups will be given free tests if they have symptoms.

• The Government is working with retailers to ensure that everyone who wants to can buy a test. Some high-street pharmacies are selling individual LFTs from £1.89 per test, or a pack of five for £9.29.

Workplace guidance

• The health and safety requirement for every employer to explicitly consider Covid-19 in their risk assessments has been removed as of 1 April 2022. However, employers that specifically work with Covid-19, such as laboratories, must continue to undertake a risk assessment that considers Covid-19.

• The Government will consult with employers and businesses to ensure guidance continues to support them to manage the risk of Covid-19 in workplaces.

• There will continue to be specific public health guidance for those whose immune system means they are at higher risk of serious illness from Covid-19 despite vaccination.

What are the practical implications for employers?

If there are more people with Covid-19 attending the workplace, this could represent a risk to the company. An outbreak amongst a team could jeopardise the ability to continue functioning effectively.

With free testing being discontinued, it is even more difficult for employers to know if their employees have Covid-19. Bearing this in mind, employers should make sure they are adhering to the Workplace (Health, Safety and Welfare) Regulations 1992, and ensure they have effective ventilation in any enclosed workplaces.

As the focus of the new phase of Living with Covid-19 is to protect those who are most vulnerable, employers should consider encouraging workers to protect others who may be at higher risk. This includes, social distancing, ventilation, and face coverings. However, it is no longer a legal obligation to follow these requirements.

Can employers require people to stay at home if they test positive for Covid-19?

You could consider implementing workplace rules/policy regarding Covid-19. This could require an employee to stay at home if they receive a positive test or have Covid-19 symptoms, and either work from home, or not work at all if they cannot work from home.

It is unlikely that a requirement to work from home or stay at home isolating if test positive or have Covid-19 symptoms could be argued as being unreasonable, unless there is a significant detriment. Therefore, you will have to pay full pay if your workplace policy requires an employee to stay at home but the employee is physically fit to work, and is willing to do so, however, they cannot do their job from home.

What steps should I be taking?

• To reduce the risk of spreading Covid-19 in the workplace you can encourage employees to follow the Government’s advice of trying to stay at home and away from others if they receive a positive test or have Covid-19 symptoms.

• Decide and implement a workplace policy as to what to do if an employee tests positive. This could include decisions on working from home, not working at all, and corresponding pay.

• Employers may wish to consider the needs of employees at greater risk from Covid-19, including those whose immune system means they are at higher risk of serious illness from Covid-19.

• Decide if you would still like to encourage social distancing and wearing a face mask amongst employees.

• Communicating and being transparent with employees who are still reluctant to return to the workplace. Having steps in place that follow Government guidance when an employee tests positive may help to address concerns.

If you have not done so, we strongly advise that employers set out what their policy is if an employee tests positive for Covid-19 or has Covid-19 symptoms and the implications for pay. This should then be communicated to employees so everyone is clear about what to expect.

This article was written by Claire Berry, an employment solicitor at Price Bailey. If you have any questions on the points raised in this article or would like assistance with creating a Covid-19 policy, please fill out the form below.

We always recommend that you seek advice from a suitably qualified adviser before taking any action. The information in this article only serves as a guide and no responsibility for loss occasioned by any person acting or refraining from action as a result of this material can be accepted by the authors or the firm.

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