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What does the end of the COVID restrictions mean for employers?

6 April 2022 / Insight posted in Practical guides

Following the government’s announcement on 21 February to end the remaining COVID-19 restrictions in England over the coming months, the government will place responsibility for living with the virus on individuals in line with the Living with COVID-19 plan.

This announcement has caused uncertainty among businesses about how they should respond to this.

Here we summarise the changes and consider what this will mean for employers and employees to ensure that we are all taking responsibility for managing COVID-19 safely in our place of work.

Timeline of government’s ‘Living with COVID-19’ plan

21 February the government:

Removed the guidance for staff and students in most education and childcare settings to undertake twice weekly asymptomatic testing.

24 February the government:

Removed 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 five full days and then continue to follow the guidance until they have received two negative test results on consecutive days.
No longer asks fully vaccinated close contacts and those aged under 18 to test daily for seven days, and removed the legal requirement for close contacts who are not fully vaccinated to self-isolate.
Ended self-isolation support payments, national funding for practical support and the medicine delivery service.
Ended routine contact tracing. Contacts are no longer required to self-isolate or advised to take daily tests.
Ended the legal obligation for individuals to tell their employers when they are required to self-isolate.
Revoked The Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations.

24 March the government:

Removed the COVID-19 provisions within the Statutory Sick Pay and Employment and Support Allowance regulations.

1 April the Government:

Removed the current guidance on voluntary COVID-status certification in domestic settings and no longer recommends that certain venues use the NHS COVID Pass.
Updated guidance setting out the ongoing steps that people with COVID-19 should take to minimise contact with other people. This is aligned with the changes to testing.
No longer provides free universal symptomatic and asymptomatic testing for the general public in England.
Consolidated guidance to the public and businesses, in line with public health advice.
Removed the health and safety requirement for every employer to explicitly consider COVID-19 in their risk assessments.
Replaced the ‘Working Safely’ guidance with new public health guidance.

In response to these changes Peter Cheese, chief executive of the CIPD, is encouraging employers to remain cautious and consider their duty of care going forward. Cheese said that in all cases it would “be important to continue an open dialogue with employees”.

“When deciding what rules and guidance to put in place, employers need to be led by the principles of what is fair and reasonable to ask, respecting that many people with vulnerabilities will still be very concerned about coming into places of work,” he said.

We would recommend for businesses to be reasonable and exercise discretion if they wish to continue these restrictions and incorporate them in a company policy. Carrying out a review on your COVID risk assessment may also help guide you. What works for one employer and their staff may not work for another.

FAQs

Can I ask staff to take a COVID test?

If you have a business reason to do this e.g. to protect vulnerable staff or you are in a high risk industry i.e. food manufacturing in line with your COVID risk assessment, then yes you can ask employees to take tests when required.

This could be on a daily basis before they attend work or if they have symptoms, either way it would be advised to put this into a company policy. However, if an employee does not provide their consent to do the test, then you would need to ensure you have a strong business reason if you wanted to discipline them for failing to follow a reasonable management instruction.

From 1 April the government no longer provides free testing. Therefore, if you make the decision to ask your employees to continue to test after this date then you would need to bear the cost of this. Either by purchasing tests from private providers or reimbursing the employee through your expenses policy.

There is additional guidance for those working in health and social care settings.

Can I ask staff to wear a mask?

Similar to the above question, this would come down to if it is reasonable for you to force this. Some employers have risk assessments in place that state staff should wear masks irrespective of COVID. However, there would be a health and safety reason for this e.g. dust or chemicals in the workplace or working with food products.

Therefore, if in your risk assessment it states that employees should wear masks to protect vulnerable employees or if you are in a high risk industry then it may be reasonable to introduce this as a company policy.

If however, an individual refuses to wear a mask then it would be advised to understand the reason for doing so. If they are exempt due to a medical condition then it may be considered as a reasonable adjustment to allow them not to wear a mask. It could be possible to discipline someone who refuses to wear a mask however, employers would need to make sure they weigh up the risk to the employee compared to the risk to their colleagues as to whether it would be fair and proportionate to discipline someone.

There is additional guidance for those working in health and social care settings.

Can I insist staff to return to the workplace?

Ultimately, this would depend on each individual’s circumstances and their role. Although the guidance to work from home has been removed, some individuals may still be nervous about COVID, especially if they or their loved ones are vulnerable.

Alternatively, some individuals may feel nervous to return to society. Most of us have spent the last two years trying to stay away from others in line with government guidance, so some people may need coaxing back to work. Therefore, putting in a hybrid working plan may be an option to ease employees back into the workplace.

If the individual is unable to carry out 100% of their role from home then the business would have a stronger position to get them back to work. However, it would all depend on what is reasonable. It would be advised to obtain employment advice if you find yourself in this situation.

Can I ask staff not to attend the workplace if they test positive or are a close contact of someone who does?

From 24 February the legal requirement to self-isolate, whether you have tested positive or are a close contact of someone who tests positive, was removed. From 1 April the government removed their advice for people to self-isolate. They have now implemented guidance advising people to try to stay at home and avoid contact with other people, if they test positive for COVID.

As such it may be reasonable to implement a company isolation policy, stating that staff will be required to stay at home if they test positive. It would be advised to cover this in your COVID risk assessment.

If the individual is able to work from home, then for the Company isolation period they can work from home. However, if they are in a role where they are unable to work from home then as the employer is making the decision for them to not attend work this could be classed as medical suspension. Resulting in the employer having to continue to pay their normal salary, even though they are not working.

Although not yet tested in the courts, the alternative option to medical suspension could be to treat any such absences as sickness absence and pay your employees company sick pay or statutory sick pay (SSP) in line with their contractual entitlements. If this is the route you would like to take then it would be advised to implement a company policy to this effect.

Can I ask staff to report a positive test?

From 24 February staff are no longer legally required to inform their employer if they test positive. However, if you would still like your staff to report this to you, then as long as you have a business reason i.e. to protect the health and safety of all staff then you can implement a policy advising employees to report this to you.

As a theme in these FAQs, ultimately if an employee does not report this the employer may be able to discipline them for failure to follow company policy. However, this would need to be reasonable and proportionate.

What do I pay staff if they have COVID?

Testing positive for COVID is classed as sickness leave, if they are unable to work. The right for employees to be paid Statutory Sick Pay (SSP) from day one of their absence, if it is COVID related, ended on 24 March.

Therefore, after this date if an employee is absent due to receiving a positive test they will only receive SSP from the 4^th day of absence. The first 3 days are classed as waiting days and will therefore be unpaid. If an employee is off for more than 7 calendar days they would need to provide you with a fit note from their GP like any other absence.

If however, you offer enhanced Company sick pay then you should continue to pay your staff in line with their contractual entitlement.

The SSP rebate scheme, which allows employers to claim back 2 weeks SSP from the government closed on 17 March. Employers had up to and including 24 March to submit or amend any claims.

What do I do if a member of staff has symptoms?

If a member of staff has COVID symptoms you should refer to your internal policies on how to manage this. Therefore, it would be advised to put in policies now to cover this situation.

You could ask for the employee to take a test, see question one above.

You could ask for the employee to isolate, see question 4 above.

Ultimately, what you do would need to be fair and consistent and in line with your COVID risk assessment.

Can I ask staff about their vaccination status?

You can ask your staff about their vaccination status however, as this is information pertaining to their health the employer would need their consent to process such data. An employee has the right not to provide their employer with this information therefore, employers cannot force individuals to provide them with their vaccination status or penalise them for not doing so.

This kind of information is classed as special category (previously sensitive) data under the General Data Protection Regulations (2018) (GDPR) therefore, extra precautions should be taken to ensure this data is kept confidential and secure.

Can I ask non-vaccinated employees not to return to the workplace or wear a mask?

Due to the potential risk of discrimination, it would not be advised to treat non-vaccinated staff any differently to your vaccinated staff. The policies put in place should treat each individual fairly and consistently, regardless of their vaccination status.

The reason for this is that there may be a reason for an individual not have the vaccine e.g. health, age, sex or even a philosophical belief. Therefore, treating them differently on these grounds could amount to discrimination. This is yet to be tested in the courts therefore, our advice is to err on the side of caution.

You can of course implement whatever polices you like as a Company however, there may be a risk associated with this that could be quite costly.

Can I ask staff to social distance in the workplace?

If you would like to ask staff to social distance in the workplace, it would be advised to have a reason to implement this e.g. to protect vulnerable staff. This would be covered in your COVID risk assessment, and to implement a policy to this effect.

As mentioned above, if a member of staff fails to follow this, it must be reasonable and proportionate to discipline them.

Alternatively, you may wish to let employees decide as some people may be more concerned than others. An idea that some employers have adopted may be to introduce colour coded wrist bands/badges:

Green = Ok with hugs and high fives

Amber = Ok with talking but not touching

Red = I am social distancing

Do I have to have a COVID risk assessment?

From 1 April employers are no longer be required to have a COVID specific risk assessment. However, employers have the responsibility to keep their staff safe and healthy at work. Due to an employer’s duty of care and people’s anxiety around COVID it would be advised to have a risk assessment in place, especially if you will be adopting previous government guidance into internal policies.

Do I still have to follow the working safely guidance?

From 1 April the Government replaced the COVID working safely guidance with public guidance for people with symptoms of a respiratory infection, including COVID-19. This guidance covers symptoms, what to do if you have symptoms, what to do if you test positive and what to do if you are a close contact.