This week the Prime Minister announced that Covid restrictions in England are coming to an end. No more duty to self-isolate (as of 24 February) and no more free testing (as of 1 April) as we "learn to live with Covid". Many may welcome this return to something approaching the old normality, it puts employers, who are now faced with treading the tightrope between the complete removal of restrictions and the government's exhortation to take a "cautious approach", in an unenviable position.
Here are a few of the issues to consider, though no doubt more will emerge over the coming weeks!
Can we continue to require testing?
Many employers, particularly those providing services to service users who are particularly vulnerable to Covid, have been very reliant on testing as a way of ensuring that the workplace remains Covid-free. What happens now that there will be no access to free testing kits? As people with Covid won't have to isolate, it's likely that the appetite for testing will wear off.
It will be difficult to insist on all employees continuing to take tests before entering the workplace, but for those providing services to the vulnerable there is a good reason to require staff to continue to test. There will also be the issue of customer expectation; for example, those paying for care treatment are likely to want to ensure that staff who are looking after them are Covid-free.
But who will pay for the tests in these circumstances? There are reports of employers already agreeing to pay for tests. These could be made available to those who wish to test, or who are displaying symptoms of Covid-19. In the case of employees working in care homes, or supplying care services to the vulnerable, testing is likely to remain key. The government has said that free symptomatic testing will remain available to social care staff from 1 April onwards, but given that many who catch the virus are asymptomatic, employers in the social care sector may decide that this does not give sufficient protection to their service users and may wish to continue requiring all staff to test. This will clearly have an unwelcome financial knock-on effect at the same time as the rise in the minimum wage and national insurance.
Employers may want to put rules in place requiring people to remain away from the workplace if they test positive, and, if possible, to work from home. The reasonableness of having these rules in place will depend on the risk in the particular workforce.
If we don't require those who have Covid to stay at home, will we be liable for other vulnerable people catching covid?
Given that there is no legal requirement for those with Covid-19 to isolate at home from tomorrow onwards it's highly unlikely that an employer would be legally liable for vulnerable people in the workplace catching Covid. An employer is however under a duty to protect the health and safety of its employees and so proper risk assessments should be carried out to ensure that risks of Covid-19 infection are minimised, that staff understand the risks and take any recommended measures to avoid them.
Things to consider are making tests available for staff who wish to take them and continuing to encourage those who haven't been vaccinated to take up the vaccine. Employers may also wish to keep any rules on ventilation, wearing face masks, hand washing and other safety measures that they currently have in place.
The government has said that there will be specific guidance issued for staff in particularly vulnerable services, including adult social care and healthcare.
If we require staff testing positive to stay away, do we pay them sick pay?
As the use of tests diminish, it is likely that Covid will be treated by employers in the same way as other illnesses, in that if someone is unwell, they will be entitled to sick leave.
There will be no legal requirement to pay sick pay to those that are positive but well enough to work, but who you require to stay away from the office. The risk of not paying sick pay to employees is that, if they are COVID positive but asymptomatic, they may otherwise continue to come into work, to avoid losing pay, thereby putting other staff and customers at risk.
Does the position change if the employee has refused the vaccine and then contracted Covid? The reason that an employee has become ill does not affect their entitlement to SSP and most occupational sick pay schemes don't usually distinguish between different types of illness or the circumstances in which the illness was contracted. Even if the company sick pay is "discretionary" there may still be discrimination and human rights arguments, and it could be controversial from an employee relations angle. From a practical point of view it's also not without difficulty as it is possible for people to be vaccinated and still contract Covid. In a recent survey we ran, only a small minority differentiated between those vaccinated and not vaccinated.
Self-isolation support payments will end on 24 February, although SSP in relation to Covid-19 will be available until 24 March.
What are our obligations to vulnerable employees?
As already mentioned, employers are under a duty to protect the health and safety of their employees. Risk assessments should be carried out to ensure that the risks of Covid-19 infection are minimised.
It may be that some vulnerable people in the workplace are disabled and employers must consider reasonable adjustments.
Will it be a reasonable adjustment to allow those who are particularly vulnerable to isolate from others?
It might be. This will depend to a certain extent on how practicable this is for the employer to implement. Factors to take into account will include the nature of the employer's activities, the size of the employer and the type of arrangements which have to be made. If it is possible for someone to work from home, and they have been doing so successfully during the pandemic, then it will probably be deemed reasonable for them to work from home as a way of avoiding the risk of infection.
If, however, there is no way of implementing a working from home arrangement then other alternatives could be considered such as the provision of PPE, putting social distancing in place for the individual in question and, if they travel to work on public transport, allowing them to travel during off peak times.
What do we do if an employee believes that, due to the end to free testing and the scrapping of self-isolating, it is now unsafe for them to attend the workplace?
You should listen to the employee's concerns and try to resolve them first. You should try and allay their concerns by telling them about the health and safety measures you have put in place to mitigate the risks. Any such discussion should be followed up in writing so that you have an audit trail.
If all else fails then it may then be possible to start taking disciplinary action. It may be a fair dismissal to terminate an employee for refusing a reasonable instruction, but all other ways of dealing with this (such as a warning) should be exhausted first.
If there is a discrimination angle then an employer will have to proceed with caution. There may be staff who are disabled or pregnant and are therefore reluctant to return to attend the workplace. People who suffer from certain health conditions are at higher risk of serious illness if they contract Covid-19 and a requirement for them to return to work, and then not to pay them or to dismiss them due to their absence, could amount to discrimination.
You also need to be aware that an employee might argue that there are circumstances of serious and imminent danger present which mean that they are not happy to return to work. Section 44(1)(d) ERA says that an employer cannot subject someone to a detriment (e.g. loss of wages or discipline) if the worker just left the place of work, or refused to return to his place of work "in circumstances of danger which was serious and imminent and which he could not reasonably be expected to avert". Section 100(1)(d) ERA says that any dismissal based on the employee's actions will be automatically unfair.
"Circumstances of danger" will be an objective test, but will probably be broadly interpreted. "Reasonable belief" will be subjective and broadly interpreted, just because one person is happy going into work under the circumstances, doesn't mean another is.
Although it will be open to an employee to bring such a claim, the chances of it succeeding are probably limited. In a recent case, Accattatis v Fortune Group (London) Ltd, the dismissal of an employee who expressed concerns about commuting and attending the office during lockdown and asked to be furloughed was not unfair. Provided that an employer has tried to reduce the risk of Covid-19 transmission, and listened to and tried to accommodate an employee's concerns, a refusal to attend work will not be justified.
Should Long Covid be treated differently from other illnesses?
Employees with long Covid may be disabled under the Equality Act 2010 ("EqA 2010"). If so, then employers will need to be live to their duty to make reasonable adjustments.
Under the EqA 2010 a disabled person must be a person with "a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities".
It's also worth bearing in mind that sufferers of long Covid may have a pre-existing condition (e.g. diabetes or asthma). Even if their post-Covid condition is found not to amount to a disability itself, the combined effect with their pre-existing condition may result in an overall substantial and long-term adverse effect so that the EqA 2010 test for disability is met.
We don't know yet of any decided cases on whether long Covid amounts to a disability.
What happens if an employee raises a complaint that they believe a colleague has Covid?
This is a tricky issue. As Covid symptoms are similar to cold symptoms there's no guarantee that the colleague has Covid at all.
It might be worth employers suggesting that if employees have cold symptoms they should take a test (provided by the employer) to check that they don't have Covid, or to work from home if they're able to do to. If they then have a positive test they should stay at home until their symptoms have disappeared. These measures would help demonstrate compliance with the employer's duty to ensure the health and safety of its employees.
What will be interesting to see is whether there is a sea change in expectations that slightly sick employees don't attend work. We think this shift is already happening with those with colds that would previously attend work, now staying at home where they can work from home.
