Please note links to all guidance referred to in this note can be found at the end.
In recent weeks, a series of changes to COVID-19 laws and guidance has been announced across England, Wales and Scotland including the UK government’s “Living with COVID” plan and related guidance on the arrangements which apply from 1 April 2022. Whilst precise details differ across each of the nations, it is clear that we are seeing a significant shift away from the prescriptive approach that employers have become used to in the last 2 years. Rather than a directional approach from the government, the emphasis is moving towards employers having to make their own assessments of what arrangements to put in place in their workplaces. This is acknowledged in the “Living with COVID” plan which states that the “intention is to empower businesses to take responsibility for implementing mitigations that are appropriate for their circumstances.” In considering those mitigations, two very significant changes need to be factored in - people who test positive with COVID-19 are no longer required by law to self-isolate and lateral flow tests are no longer free.
Key changes and guidance
The previous guidance issued by the government (including the ‘Working Safely’ guidance) has now been replaced. There are now a number of new guidance documents, some of which are sector-specific. The two main guidance documents relevant to all employers, both of which have been issued by the UK Health Security Agency (UKHSA), are:
- Guidance for people with symptoms of a respiratory infection, including COVID-19 – referred to in this note as “Guidance for Individuals”
- Guidance on reducing the spread of respiratory infections in the workplace – referred to in this note as “Guidance for Employers”
In a nutshell, the key changes arising from the new guidance, which took effect in England on 1 April 2022 are:
- Free tests are no longer available. There are some exceptions to this, with symptomatic testing available for individuals eligible for COVID-19 antiviral treatments and to those in certain high-risk settings. Asymptomatic testing may be available to certain people during periods of high prevalence. Free tests will remain available for slightly longer in Scotland and Wales for individuals with symptoms but they are likely to be phased out within the next few months.
- Individuals who test positive are advised to ‘try’ to stay at home, avoid contact with other people and work from home if they can for five days after the day of their test. If they do need to leave the house, they are advised to wear a face-covering, avoid crowded places and avoid contact with people who are at higher risk.
- The guidance is now focussed on reducing the spread of respiratory infections more widely, of which COVID-19 is one. This means the list of symptoms which employers need to be aware of from a risk management perspective has been expanded. The list is now wide-ranging - as well as the three previously recognised COVID-19 symptoms, it now includes a number of other symptoms including a sore throat, a blocked or runny nose and an unusual headache.
- Where an individual has one or more of those symptoms and
- has a high temperature; and/or
- does not feel well enough to go to work or do their normal activities
- the Guidance for Individuals advises the individual to ‘try’ to stay at home, avoid contact with other people and work from home.
- Those with symptoms who do not have a temperature and/or do not feel too unwell to work or carry out their normal activities are not advised to try to stay at home or work from home. Under the guidance, they are able to attend work as usual.
- Whilst close contacts (i.e. those who have stayed overnight or live in the same household as someone with COVID-19) are advised to limit close contact with other people and to take other steps to reduce risk, they are not advised to try to stay at home or to work from home.
- There has been a move away from the terms “clinically extremely vulnerable” and “clinically vulnerable”. However the latest guidance does recognise that some people are at higher risk from COVID-19 (including older people, those who are pregnant and people with certain health conditions). The government advises caution around all people who are at higher risk (including advising people who have tested positive or who are unwell with symptoms to avoid contact with those who are at higher risk) but in particular it highlights the need for extra caution in relation to those people whose immune systems mean they are at higher risk from COVID-19. As part of this, the government has issued additional guidance for immunosuppressed individuals who are at higher risk.
These changes mean employers are faced with a tricky balancing act as they juggle competing demands – how best to keep people safe whilst at the same time returning to a more business-as-usual way of operating.
Devising your approach
The Guidance for Employers is not prescriptive and instead puts the onus onto employers to decide what measures to take to keep people safe. In particular, the guidance states that employers “may wish to consider how best to support and enable their workforce to follow” the Guidance for Individuals.
As the new guidance offers employers a great deal of flexibility, approaches on how to ‘live with COVID’ will vary from employer to employer and you will need to work out what best fits your business. Key factors which may influence your approach will include your health and safety obligations, employee confidence to return to the workplace, customer confidence (if customers visit your premises), how easily employees can work from home, reputational risk and staffing costs as well as the risk of significant operational disruption due to a workplace outbreak of COVID-19.
Whilst ultimate approaches will vary, the first step will be to revise and update your health and safety risk assessment as this will underpin your eventual approach.
Although the requirement for employers to consider COVID-19 expressly in their risk assessments came to an end on 1 April 2022 (except for those employers whose workers come into contact with COVID-19 due to their work, such as those caring for infectious patients), it doesn’t mean the risk of COVID-19 can be ignored. Employers are required to take reasonable steps to ensure their employees’ safety – this includes the obligation to provide a safe place of work and to ensure, as far as is reasonably practicable, the health, safety and welfare at work of all employees. Given those broader health and safety duties, employers will continue to need to take steps to assess and reduce the risk to their workforce of contracting COVID-19 in the workplace – any risk assessment should also take account of how you will look to protect the safety of those at higher risk.
We are likely to see a range of different approaches taken by employers, with practices starting to emerge over the coming weeks. Whatever arrangements you put in place, make sure you keep these arrangements under review and make it clear to employees that the position will be monitored. Government guidance and employer practices are likely to evolve over time and arrangements may need to be refined or updated as things change and as case rates change.
Using your updated risk assessment as your basis, the five key questions below will help you devise and refine the right working arrangements for your business.
Five key questions to help shape your approach
Now that free testing is no longer available, will you provide free tests for your employees and, if so, in what circumstances?
The end of wide-scale free testing represents a major step change in the UK’s management of COVID-19. There has, unsurprisingly, been much focus on the phasing out of self-isolation rules but the end of free testing is arguably even more significant as it will mean that, for the most part, individuals and employers will (without additional measures) not know if someone has COVID-19.
The Guidance for Employers does not make any direct reference to testing or test results. Outside of high-risk settings, it appears clear that the government is not currently intending to provide guidance on the role that testing may or may not play in the workplace moving forwards. It is therefore for the employer to decide the extent to which it wants to use (and pay for) testing as a way of reducing the risks associated with COVID-19.
Bear in mind that the impact and potential benefits of any arrangements that you put in place for an employee who tests positive are likely to significantly reduce if you do not provide employees with tests, as we would expect many employees will be unlikely to test (for work purposes at least) if they are having to pay for a test themselves. Please note there may be tax implications if you do choose to supply and/ or reimburse the costs of tests.
If you are contemplating providing free tests to your employees you will need to decide on the parameters of those arrangements. In particular:
- Who will be tested – will it be all employees or only those in certain roles (e.g. where their role involves work in more confined spaces or with people at higher risk if they contract COVID-19)?
- When will an employee be tested? Just when they display symptoms or more routinely?
- Will testing be carried out on site or will you provide tests to employees to use at home?
- Will testing be required in certain circumstances (e.g. when large events are held)?
Employers who choose to pay for tests will need to make sure that they carefully consider the data protection implications - asking for test results to be reported will constitute special category data. The Information Commissioner’s Office (ICO) has issued new guidance on data protection and COVID-19 which employers will need to review and consider.
Your testing arrangements should be kept under review and any communications should make it clear that your approach to testing may change. For example you may decide to offer free tests when rates of COVID-19 are high but may want to pull back from that when rates are lower.
If an employee tests positive for COVID-19 but is well enough to work, will you require them to stay away from site or work from home?
An employee who is unwell with COVID-19 and is unable to work is now in the same position as an employee who is sick due to any other illness. Their absence will count as sick leave in the usual way and will be subject to your usual sickness absence policies (including any rules on company sick pay). The COVID-19 specific statutory sick pay (SSP) provisions, which allowed employees who were self-isolating to receive SSP from day one have now come to an end. This means eligibility for SSP reverts to the pre-pandemic criteria and so is only payable from day four if the employee remains too unwell to work.
The position is more complex for an employee who has tested positive but is feeling well enough to work. Broadly speaking, these employees will fall into two categories:
- Those who can work from home - Given the Guidance for Employers invites employers to consider how ‘best to support and enable their workforce to follow’ the Guidance for Individuals, it is likely that most employers with staff who can (and have been) working from home effectively will continue to ask those who test positive to work from home for at least 5 days (or potentially longer if they continue to feel unwell and/or are continuing to test positive).
- Those who cannot work from home - Where your employee cannot work from home, you have a tougher call to make. In considering whether the employee can come to work, you will need to take account of your risk assessment and whether other mitigation measures (such as face coverings, temporary redeployment or working in an area away from other people, particularly those who are at higher risk) can reduce the risk of transmission to other employees or customers sufficiently. If those mitigation measures do not reduce the risk sufficiently, then you may need to ask the employee to stay away from the workplace during the 5 day period after their test. This will have pay implications which we consider below.
Even if mitigation measures can reduce the risk sufficiently, you will need to consider how the presence in work of someone who is known to have COVID-19 is likely to sit with your employees, customers, visitors to site etc. The potential fall-out in terms of negative PR and the impact on employee relations may dictate your approach to this question.
A quick word on close contacts of those who have tested positive. In the absence of a legal requirement for close contacts to test or to self-isolate, you will need to consider what measures to put in place for close contacts within your workforce. In the Guidance for Individuals, close contacts are not advised to work from home. Instead the guidance sets out some steps that contacts can take to reduce the risk to other people, such as limiting close contact with people outside their household and avoiding contact with those who are at higher risk. In certain circumstances, you may consider paying for tests for those who are close contacts and ask them to take a test for any day on which they are coming to the workplace.
What arrangements will you put in place for employees showing symptoms of respiratory illness?
Perhaps one of the trickiest issues is around what arrangements should be put in place for employees who are showing symptoms of respiratory illness (which includes COVID-19). The guidance means employees with symptoms will fall into one of two categories:
- Group 1 - those who have symptoms and have a high temperature or do not feel well enough to go to work or do their normal activities; and
- Group 2 - those who have symptoms but are otherwise well and do not have a temperature.
Employees in Group 1
Under the Guidance for Individuals, employees in Group 1 should try to stay at home, avoid contact with other people and work from home if they can until they feel well enough to resume normal activities and/or they no longer have a high temperature. Most employees in this group would be likely to be on sick leave until they feel better in any event. If, however, an employee is well enough to work, then you should allow them to work from home if you can or, if homeworking is not viable, consider alternatives. Alternatives could include asking the employee to take a test (which you may want to provide), with only those testing negative allowed on site.
Employees in Group 2
Employees in Group 2, according to the Guidance for Individuals, are able to come to the workplace and do not need to stay at home. Whilst some employers may be happy to permit employees in this Group onto site, other employers may prefer to take the more cautious approach of requiring those with symptoms to work from home until their symptoms clear or only allowing employees on site if they have tested negative. What you decide is right for your organisation may depend on a number of factors, including the potential operational impact of wide-scale transmission of the illness (whether COVID-19 or another infectious illness) and the degree to which your employees are reluctant to be in the workplace alongside colleagues with symptoms.
To date, many businesses (particularly those with employees who can work effectively from home) have asked those suffering cold-like symptoms to stay away from the workplace. The government’s stated intention is for there to be a “transition to managing COVID-19 like other respiratory illnesses” but it remains to be seen how comfortable people will be to work alongside those who are ill, even where guidance permits it.
If you do ask employees in Group 2 to work from home, you should give some thought as to how employees who are reluctant to come back to the workplace more generally might respond. A policy allowing an employee to work from home whilst they have any of what is a long list of commonplace symptoms could lead to those who prefer working from home reporting minor symptoms on a regular basis. If this happens, you should talk to line managers about how to approach conversations with these employees or you may want to consider alternatives (such as sending out tests to employees).
Where employees are unable to work from home and your policy requires them to stay away from site, what pay arrangements will you put in place for those employees?
As mentioned above, the deemed incapacity provisions that extended SSP eligibility to individuals who were self-isolating in line with government guidance have come to an end. This means that the usual SSP rules now apply, so SSP is usually only payable where the worker is too unwell to work and only from day four of any absence.
If you want employees with symptoms (including those who test positive for COVID-19) to stay away from work, where they are well enough to work but cannot work from home, you are likely, in most cases, to have to pay those employees full pay. This is because the employee will be ready and willing to work and, in the absence of any government requirement to self-isolate, it is the business’ decision to require them to stay at home. There may be some exceptions to this principle (depending on the contractual provisions that apply in both the contract of employment and/ or any company sick pay policy) but we expect these to be relevant in only a limited number of cases.
It is also worth noting that the level of compliance with an employer’s requirement to stay away from work is likely to be higher where the employer continues to pay employees for that absence. If it is reputationally important for you not to allow those who test positive and/ or who have symptoms to be on site and/or if the risk of a workplace outbreak is business critical, this is likely to influence your approach.
What arrangements will you put in place for employees who are at higher risk?
You will also need to give special consideration to employees who are at higher risk from COVID-19, and, in particular, to those whose immune system is compromised and for whom the government has issued specific guidance. That guidance states that “if it feels right for you, work from home if you can. If you cannot work from home, speak to your employer about what arrangements they can make to reduce your risk.”
Where you have an employee who is at higher risk (particularly an employee with a weakened immune system), their line manager should discuss their working arrangements with them given the latest changes in guidance. Where relevant, you may want to consider an individual risk assessment with input from medical advisers.
In addition, those at higher risk may also have additional employment law protections. For example, you may need to make reasonable adjustments if the employee is disabled. Also worth remembering is that an employee who raises reasonable concerns about risks to their health and safety at work is offered protection from detrimental treatment or dismissal as a result.
You may also find that some employees who are at higher risk are reluctant to return to the office, particularly as measures on testing and isolation have been relaxed. Managing discussions with reluctant returners can be tricky and in our “Conversation about COVID-19 and the Reluctant Returner” video we share our thoughts on what you can do if you have an employee who is hesitant to return. The video can be found here: A Conversation about reluctant returners
We have been advising many employers on their workplace arrangements and policies during the pandemic and their pay obligations for affected employees. If we can help your organisation with its planning, please contact Luke Bowery or another member of our Employment team.
Links to the main guidance in England:
Guidance for people with symptoms of a respiratory infection, including COVID-19
Guidance on reducing the spread of respiratory infections in the workplace
Guidance for people whose immune system means they are at higher risk
NHS guidance on COVID-19 symptoms
ICO guidance on data protection and COVID-19
This article was written by Katie Wooller and Luke Bowery.
Disclaimer
This briefing gives general information only and is not intended to be an exhaustive statement of the law. Although we have taken care over the information, you should not rely on it as legal advice. We do not accept any liability to anyone who does rely on its content.