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Employment Newsletter - Issue 19

1st March 2022

Employment Newsletter - Issue 19

Focus On? Living with Covid-19

The Prime Minister announced during the Covid-19 briefing on 21 February 2022 that all Covid-19 restrictions will be brought to an end over the coming weeks. The government has since released its Living with Covid-19 plan setting out how the country will now move into a new phase of managing the virus. The government is clear that SAGE believes there is still considerable uncertainty about the path the pandemic will now take in the UK. The guidance therefore recognises the need to retain the ability to respond if a new variant emerges or during periods of waning immunity.  

What has already changed?

Since 24 February 2022, individuals who test positive for Covid-19 have no longer been legally required to self-isolate. However, people are continuing to be advised to stay at home and avoid contact with others for at least five full days and until they have received two negative test results on consecutive days. 

Contact tracing has also ended, meaning that fully vaccinated close contacts and those under 18 will no longer be legally required to test daily for seven days. Those that are unvaccinated will also no longer have to self-isolate.

It is important to note that this means staff are also no longer obliged to inform their employer if they are required to self-isolate and employers are no longer required to prevent workers from attending the workplace when they should be self-isolating.

What changes are to come?

Covid regulations for increased statutory sick pay (SSP) will apply for a further month. On that basis, from 24 March 2022, employees with Covid-19 will no longer be eligible for statutory sick pay (SSP) from day-one of their illness – with SSP only being paid on the fourth consecutive day of illness. The pre-pandemic SSP rules will apply.

From the 1 April 2022, the stay at home government advice for those who test positive for Covid-19 or have symptoms will be updated to align with the changes on testing. Individuals will be asked to exercise personal responsibility when deciding whether to stay home. We will update you as and when more details are published.

 The government will replace the existing set of ‘working safely’ guidance with new public health guidance and remove the health and safety requirement 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. However, employers that specifically work with Covid-19, such as laboratories, must continue to undertake a risk assessment that considers Covid-19.

From 1 April 2022, the government will also no longer provide free universal symptomatic and asymptomatic testing for the general public in England.

The end of these Covid-19 restrictions which have governed our behaviours for the last two years are likely to have an impact on your workplace and the current policies you have in place. On that basis, we advise that employers consider their current health & safety risk assessment, vulnerable workers, sick pay policies and their approach to testing.

Health & Safety

Despite the end of Covid-19 restrictions in the England, an employer’s duty to protect the health and safety of its staff remains. The government states that the intention is to empower businesses to take responsibility for implementing mitigations that are appropriate for their circumstances. We therefore recommend that an employer considers whether it may be appropriate to retain many of the health and safety measures it has implemented over the last few years. For instance, the government guidance emphasises the importance of good ventilation and states that employers should continue identifying poorly ventilated spaces and take steps to improve fresh air flow.

It is also important for employers to consider their policy on workplace attendance. Up to the 1 April 2022, the guidance remains that employees should stay home if they test positive for at least five days and until two negative tests on consecutive days thereafter. It is therefore strongly advisable to continue to require those who test positive to stay home. Not doing so could increase the risk of claims and make it harder to discipline employees who refuse to attend work.

It is not clear what the position will be following 1 April 2022, when free testing ceases and the government guidance is updated. However, employers should consider producing a policy setting out their approach. Employers may consider requiring individuals to work from home where possible if they test positive or have symptoms of Covid-19. If an individual cannot work from home, employers will have to consider whether they should require them to stay at home or whether there are other measures they could put in place, such as face coverings, social distancing and ventilation to effectively mitigate the risk of transmission. It is important to note that requiring an individual to stay home may have pay implications if they are not eligible for SSP. This is discussed in more detail below under ‘sick pay’.

Employers should be aware that the duty to protect health and safety of staff also extends to considering the mental health of workers. It may be the case that the end of restrictions exacerbates existing anxiety around Covid-19 or worsens other pre-existing mental health conditions. Employers should be wary that mental health conditions may meet the definition of disability under the Equality Act 2010, requiring an employer to consider reasonable adjustments.

Vulnerable staff

Employers should also consider reviewing and/or updating their risk assessments for any employees who are vulnerable to Covid-19 due to an underlying health condition. It should be considered if current Covid-19 measures in the workplace are sufficient to protect the most vulnerable members of staff, bearing in the mind the increased risk of infection that the lifting of restrictions will likely bring. This is particularly important if an employer is considering allowing Covid-19 positive workers to attend work following 1 April 2022.

It is important to note that many vulnerable individuals could be disabled under the Equality Act 2010 and so employers will have to consider reasonable adjustments in any event. Employers may want to consider seeking advice from an Occupational Health advisor to better inform risk assessments and their approach to health and safety measures. 

Testing

Employers can continue to use workplace testing to help inform their decisions and policies up until 1 April 2022. From 1 April 2022, employers may wish to either continue paying for workplace testing privately in order to identify any positive cases of Covid-19 or stop testing altogether and rely on individuals exercising personal responsibility if they develop symptoms of the virus. The decision will depend on numerous factors, including the organisation’s risk assessments, the sector of work, and the workforce. Employers may also consider consulting with staff on their views around workplace testing moving forwards.

When deciding on a testing policy beyond 1 April 2022, employers should consider their approach in conjunction with sick pay. Please see below for more information.

Sick pay

The current Covid-19 rules on SSP continue until 24 March 2022. However, from 24 March 2022, ‘pre-pandemic SSP rules apply’. This means that workers will only receive SSP from day 4 of their sickness as opposed to day 1, and they will have to meet the definition of incapacity under the Regulations in order to be eligible. This may cause difficulties for employers who are trying to limit the transmission of Covid-19 in the workplace. We therefore recommend that sick policies are considered and reviewed ahead of these changes coming into effect.

It will be relatively simple for employees who are too unwell to work as a result of contracting the virus. These individuals will stay at home and be paid SSP from day 4 of sickness (or contractual sick pay if there is such a policy in place). It will also be relatively straightforward where an individual tests positive or develops mild symptoms (but is well enough to work) if they can work from home. In fact, some business may actively encourage staff to work from home where they have cold-like symptoms in order to reduce the risk of transmission in the workplace. These individuals will of course be paid full pay.

However, where it becomes more difficult is if an employee who cannot work form home tests positive for Covid-19 after 24 March 2022, but is asymptomatic. They will not meet the definition of incapacity under the SSP provisions and so will not be entitled to receive SSP. In this instance, an employer may have to pay the individual full pay if they wish for them to remain at home. If an employee is ready, willing and able to perform work in accordance with their contract of employment, there is an implied term that the employer has an obligation to pay wages, unless there is a contractual right not to do so.

There is also uncertainty around whether the same will apply to employees with mild symptoms or a positive test who are well enough to work. SSP is payable (from day 4) when the employee is “incapable by reason of some specific disease or bodily or mental disablement of doing work which he can reasonably be expected to do under that contract.” There is a lack of guidance around this definition as incapacity for work is generally understood to mean an employee being unfit, through illness or injury, to perform their duties. This is usually determined by the employee themselves by self-certifying or obtaining a fit-note. On that basis, in practice, SSP may be paid for mild symptoms of Covid-19 under some circumstances. However, there will be instances where the employee wishes to attend work and receive a higher rate of pay. An employer may be faced with the decision of allowing them to attend or paying them full pay to stay at home.  

We will have more advice and guidance on the above in our webinar on the lifting of restrictions which is scheduled to be held at 9.30am on the 16th March 2022. There will also be a chance to ask questions. For further details about the webinar, please click here.

If you have any questions in the meantime, please do not hesitate to get in touch with a member of the team on 0345 111 5050.

 

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