The Government has announced its plans to remove the remaining coronavirus (COVID-19) legal restrictions in England and has set out it plans in Living with COVID-19.

Nicola Sturgeon has also unveiled plans for Scotland, which include an end to various restrictions from 21 March 2022. The Welsh government is to remove its remaining COVID-19 restrictions on 28 March 2022. Northern Ireland’s remaining COVID-19 restrictions have recently been revoked and are now guidance only.

In this article we look at the changes and consider the issues posed for employers, and therefore whether EPL risks remain.

Timetable in England:

From 24 February 2022:

• The legal requirement to self-isolate after testing positive or for certain close contacts ended and was replaced by guidance. The guidance reflects the current mandatory requirement to isolate for a minimum 5 days after a positive test and then to continue to do so until the individual has two negative test results on consecutive days. This advice will remain in place until 1 April. There will be specific guidance for staff in particularly vulnerable services, such as adult social care and healthcare
• The legal obligation for individuals to tell their employers when they are required to self- isolate ended.

From 24 March 2022:

• The current statutory sick pay (SSP) rules in relation to COVID-19 absences will come to an end and we will return to the pre-pandemic position. This will mean that SSP will not be available for isolating asymptomatic employees. The right to claim statutory sick pay from the first day of COVID-19 related absence will also be removed, meaning that those ill with the virus will only be paid from the fourth day they are off work.

From 1 April 2022:

• The Government will no longer provide free universal symptomatic and asymptomatic testing for all. There will be some limited ongoing free testing, including limited symptomatic testing available for a small number of at-risk groups (further details on which groups will be eligible to follow) and free symptomatic testing for social care staff.
• The Government will update guidance to set out ongoing steps people with coronavirus should take to minimise contact with other people.
• The health and safety requirement for every employer to explicitly consider coronavirus in their risk assessments will be removed.
• The existing set of ‘Working Safely’ guidance for different sectors will be replaced with new public health guidance. The Government has indicated that it will consult with businesses and employers on this new guidance.

What are the implications?

The duty to provide a safe place of work

Employers need to strike a balance between living with COVID-19 but at the same time ensuring the safety of staff. The risk of COVID-19 may have reduced but it has not gone away and employers still are under 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 update 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.

Employers should also make sure they explain the risk assessment to employees and communicate what steps have been taken to make the office COVID-19 secure. This will be essential for employee engagement and also for re-assuring employees (including vulnerable employees) who may be reluctant to return to the workplace. Any grievances or complaints must be promptly and robustly dealt with to mitigate the risk of whistleblowing claims from employees stating that their workplace is unsafe.

Can employers continue to ask employees to isolate if they test positive?

Whilst the mandatory requirement to isolate has ended, the Government guidance in place until 1 April will be to isolate for a minimum of 5 days. The Living with COVID-19 document also states that “those who test positive should avoid contact with anyone in an at risk group”.

As part of the measures to keep employees safe and ensure business continuity, it is open to employers to implement stricter rules than the Government requires. For example, employers could stipulate that individuals who test positive for COVID-19 and/or who are displaying symptoms of coronavirus are required to work from home for a specified period of time. This will obviously be more complicated in organisations where substantial amounts of the workforce are unable to work from home. If the employee has COVID-19 and is isolating they will be entitled to SSP from day 1 of absence until 24 March when they will be entitled to SSP from day 4 if they are too unwell to work. To avoid workers coming into work when they are ill, employers may wish to consider extending company sick pay. However SSP, and usually company sick pay, will not be payable if the worker feels well, for example if they have COVID-19 but are asymptomatic or have mild symptoms. In those circumstances, if an employer requires the employees to stay at home but they are able and willing to come into work then they will need to be paid full pay. An assessment of whether it is worth incurring this additional cost (and continuing to have more workers out of the workplace) will involve consideration of the employer’s particular workplace, workforce and risk assessment.

Vulnerable employees

Employers should continue to consider the needs of employees at greater risk of COVID-19. Workers who are clinically vulnerable or pregnant employees may be reluctant to come into the workplace (and potentially travel on public transport to get there) in light of the end of the legal requirement to isolate. Employers will also wish to manage the potential claims risk of employees asserting that they will not work if they reasonably believe that they are in “serious and imminent danger”. There has been a rise in these types of claims during the pandemic – that risk has therefore not gone away. Vulnerable employees may be concerned that the lack of legal rules and changing societal approach is likely to result in individuals attending the workplace while either positive for coronavirus or showing symptoms. Employers can challenge that reasonable belief if they are meeting, and where possible exceeding, their health and safety obligations.

Employers should therefore continue to identify at risk individuals, such as pregnant women and those who are clinically vulnerable who may be classed as disabled under the Equality Act. Specific risk assessments should be carried out and occupational health consulted to consider whether further health and safety measures and/or reasonable adjustments are required for them. Options could range from allowing working from home, to providing a separate area to work in the workplace, to staggering start and finish times so that vulnerable workers can commute during less busy times. Although from 1 April employers are not explicitly required to consider COVID-19 as part of risk assessments, they still have an overriding duty to identify workplace risks and reduce them to the lowest level possible, including a specific duty to do such risk assessments for pregnant workers. Where possible, employers should adopt a considerate and flexible approach to returning to the workplace and address individual concerns when raised. In general, across the workforce, employers may see a rise in applications for flexible working as employees adjust to another “new normal”. These have to be treated seriously to avoid risks of indirect discrimination claims.

Conclusion

The Living with COVID-19 plans means employers need to consider a number of strategic questions and keep these under review as the law, guidance and pandemic develops. Employers should engage staff and communicate clearly so that everyone is aware of what will be expected of them over the coming months. Any complaints must be dealt with properly and promptly.

We are advising insureds in all sectors regularly in this developing area. If you would like to discuss any specific issues, please contact Louise Bloomfield, Partner.