The Facts
On 1 April 2022 the Government released its promised, updated guidance (https://www.gov.uk/guidance/reducing-the-spread-of-respiratory-infections-including-covid- 19-in-the-workplace) for employers: Reducing the spread of respiratory infections, including COVID-19, in the workplace (“Updated Guidance”). It replaces the ‘Working Safely’ guidance previously in place.
While noting that employers still need to comply with their legal obligations relating to health and safety, the Updated Guidance confirms that employers are no longer required to explicitly consider COVID-19 in their statutory health and safety risk assessments.
The Updated Guidance is very generalised. For instance, it provides no recommendations on whether employers should provide or facilitate COVID-19 testing. Neither does it differentiate between different workplace settings. However, in terms of health and safety obligations, employers need to strike a balance between living with coronavirus but at the same time ensuring the safety of staff. The risk of COVID-19 may have reduced, but it has not gone away. Employers still have a duty of care to provide employees with a reasonably safe place of work. The Government has now put the onus on individuals and businesses to implement the measures they think are necessary in light of their particular health and safety risk profile, rather than mandating specific rules. In light of this, employers should review their risk assessments and decide whether they wish to retain some of the COVID-19 safety measures in the workplace, such as social distancing and face-coverings.
The other key points arising from the Updated Guidance are:
- Employers should consider the needs of employees with immune systems that cause them to be at higher risk of COVID-19. There is specific, updated guidance for individuals here (https://www.gov.uk/government/publications/covid-19-guidance-for-people-whose-immune- system-means-they-are-at-higher-risk/covid-19-guidance-for-people-whose-immune-system- means-they-are-at-higher-risk). This guidance recommends that if it feels right for the employee they should work from home, and if they cannot do this they should speak to their employer about what arrangements can be made to reduce their risk (including making a reasonable adjustment if the employee has a qualifying disability under the Equality Act 2010).
- There is no longer a requirement to report outbreaks of respiratory infections in the workplace to local authorities public health teams.
- Employers should continue to encourage employees to vaccinate themselves against COVID- 19.
- Employers should continue to clean and ventilate the workplace.
The Updated Guidance embeds further guidance (https://www.gov.uk/guidance/people-with- symptoms-of-a-respiratory-infection-including-covid-19) for people with symptoms of a respiratory infection such as COVID-19. It suggests employers may wish to consider how best to support and enable their workforce to follow this guidance.
The key points are:
- Individuals with symptoms of respiratory infection and a high temperature but who have not taken a COVID-19 test should work at home if possible (if this is not possible, should discuss their options with their employer).
- Individuals who have tested positive for COVID-19 should:
- stay at home and isolate for five days after the positive result; and
- avoid meeting people at risk of becoming seriously unwell from COVID-19 (e.g. those with compromised immune systems) for ten days after the positive result.
- Individuals who have been in close contact with someone who has tested positive for COVID- 19 should avoid close contact people at risk of becoming seriously unwell from COVID-19 and limit close contact with people outside their household.
Reflective of the Government’s narrative in terms of relaxing the requirements of employers, the HSE has updated its guidance so that the general transmission of COVID-19 between employees is no longer RIDDOR reportable. HSE guidance confirms that reports are now only required where work involves deliberate work with the virus (such as in a laboratory), working in environments where people have COVID-19 (i.e. health and social care), or where there is a work related dangerous occurrence that has led to exposure to the virus.
What does this mean for employers?
We knew from the Government’s Living with COVID-19 strategy that, at this stage of the pandemic, the onus would move onto employers and individuals to manage the risk of COVID-19 transmission rather than requiring compliance with emergency legislation brought in to deal with the pandemic. 1 April 2022 was the backstop date for this shift.
When deciding which COVID-19 measures to retain in the workplace, and whether to ask employees to follow the guidance on taking a test and isolation, employers need to consider whether, and if so how, they provide or facilitate testing. It is more likely to be a reasonable management instruction to ask an employee to carry out a COVID-19 test if the test is provided or otherwise paid for. Employers will also need to consider their approach to self-isolation and payment given that since 24 March 2022, SSP is not available for isolating asymptomatic employees, and those ill with COVID-19 will only be paid SSP from their fourth day of absence. We covered these topics in our recent webinar, recorded before the Updated Guidance was published, but which still sets out the legal employment law considerations for employers to take account of when deciding their approach. This is available on request.
Employers should set out any instructions for employees in a workplace policy, which might also deal with how any future pandemics will be dealt with.
In terms of risk assessments, our view is that employers will wish to continue to reference COVID-19 and what measures they have decided to take in respect of COVID-19 despite this no longer being a statutory requirement. Employers will also need to carry out individual risk assessments for those who are immune-suppressed. The pre-pandemic requirement for pregnant employees to have a specific risk assessment also remains in place.
