What is the new guidance for living with COVID-19?

On 21 February the Government published its plan for living with COVID-19. Below we have summarised the changes and their potential impact.

What are the changes and when do they come into effect?

21 February 2022

• Guidance for those in education and childcare settings to test twice a week was revoked.

24 February 2022

• Employees are no longer required to self-isolate if they test positive for Covid-19, or if they have been in close contact, regardless of vaccination status. However, the Government guidance is that those testing positive should stay at home and self-isolate for at least five full days, and until there have been 2 negative test results on consecutive days. This guidance will be in place until 1 April 2022.
• Workers, therefore, are no longer legally obliged to tell their employers when they are required to self-isolate.
• Contact tracing has stopped and those who have been in close contact are no longer advised to isolate or take daily tests. Instead, guidance will set out precautions advised for those who live in, or, have stayed overnight in the same household as a positive case to reduce risk to other people; other contacts will be advised to take extra care in following general guidance for the public on safer behaviours.

17 March 2022

• The Statutory Sick Pay (SSP) rebate scheme will close. Employers will no longer be able to claim back SSP for their employees’ COVID-19 related absences or self-isolation that occur after 17 March.

24 March 2022

• The special provisions for SSP for those absent from work because of Covid-19 will be removed, meaning someone will have to be unfit to work in order to be entitled to SSP, and the usual three-day waiting period will apply.

1 April 2022

• Guidance issued advising those testing positive for COVID-19 to stay at home will end, and those with COVID-19 symptoms will be encouraged to exercise personal responsibility (as those who may have flu are encouraged to be considerate to others).
• The ‘working safely’ guidance will be removed and general public health guidance will be issued which will set out the ongoing steps that people with COVID-19 should take to minimise contact with other people.
• Employers should continue to consider the needs of employees at greater risk of serious illness from COVID-19. The Government will consult with employers and businesses to ensure guidance continues to support them to manage the risk in the workplace.
• The Government will no longer provide free universal symptomatic testing for the general public in England. However, free symptomatic tests for the oldest age groups and the most vulnerable to COVID-19 will be provided. The Government is working with retailers to ensure that tests will be available to buy.
• The Government will remove health and safety requirements for every employer to explicitly consider COVID-19 in their risk assessments. The intention is to empower businesses to take responsibility for implementing mitigations that are appropriate for their circumstances.
• The Government will no longer recommend the use of voluntary COVID-19 status certification, although the NHS app will continue to allow people to indicate their vaccination status for international travel.

What are the practical implications?

An increase in those attending the workplace with COVID-19 represents a risk to businesses – as an outbreak amongst a team could jeopardise the ability to continue functioning effectively.

Employees refusing to attend the workplace because of concerns also represents a practical risk in terms of getting work done and management’s time spent dealing with it.

What are the legal implications?

Employers still owe a duty of care, and therefore it is still important to take measures to assess and reduce risks to your workers.

Taking an approach that is at odds with the guidance will make it difficult to discipline employees who wish to self-isolate following a positive lateral flow test result. It is therefore advisable to continue to keep positive cases out of the workplace until the guidance changes on 1 April.

Can employers require people to stay at home, even if they are physically fit?

You could implement workplace rules/policy regarding COVID-19 which would require someone who becomes aware they are positive to stay at home – either working from home or not working at all if they cannot work from home. It is unlikely that a requirement to work from home or stay at home isolating if positive could be argued as being unreasonable unless there is a significant detriment (see ‘what about pay’ below).

What about pay?

If someone is off work with COVID-19 symptoms as they are not fit for work, they are entitled to SSP (or company sick pay depending on your policy) from day one. However, from 24 March you will no longer have to pay SSP from day one, and the usual three day waiting period will apply.

If someone has tested positive but has no symptoms, they can be asked to work from home and should be paid as normal.

If someone has tested positive but has no symptoms, and you require them to stay at home but they cannot work from home, they will be entitled to SSP from day one until 24 March. However, please be aware that if you do have a policy of only paying SSP for employees self-isolating in accordance with government guidance, this does run the risk of potentially infected employees failing to inform you of their self-isolation requirements, so they can continue to attend work and receive pay. Employers should therefore think carefully about their position on pay during self-isolation in these circumstances.

If an employee is a close contact of someone who has tested positive, or, if you require them to stay at home and they cannot work, then subject to any contractual provision to the contrary, they will need to be paid in full.

From 24 March, if someone is physically fit to work, and is ready and willing to do so, but you require them to stay at home (because they are asymptomatic, or have been in contact with someone who has tested positive) and they cannot do their job from home, you will need to pay them in full.

What steps should I take?

• It is sensible to continue with any COVID-19 health and safety measures in place currently. These will help mitigate the impact of an increase of COVID-19 in the workplace.
• Consider purchasing testing kits, to reduce the problem of lack of testing.
• Decide what your policy will be if someone tests positive, in terms of working from home or requiring them not to attend.
• Set out your policy on pay for those with COVID-19 or those that are isolating, and communicate this to employees.
• Consider what your position will be for those who are reluctant to attend the workplace. It is still advisable to take steps to address concerns and take into account any personal circumstances, but given that the guidance to work from home has come to an end, it will normally be reasonable to expect healthy employees to return to the workplace if required to do so.

When more guidance is available, we will update you on its content and the potential impact on employment decisions. If you have any questions on the points raised in this article or would like assistance with creating a COVID-19 Policy, please contact us at [email protected].