On 21 February 2022, Boris Johnson announced that all remaining legal restrictions (including mandatory isolation and mass testing) to help deal with the COVID-19 pandemic would be lifted in England from the 24 February 2022 onwards.
In ‘Living with Covid: Part One’, published in February, Christine Hart, Senior Associate examined what changes were being proposed and, importantly, what they meant for employees and employers alike.
Friday 1 April 2022 has now seen the next step in the ‘Living with Covid’ plan materialise. Most final changes and relaxation of measures are in place, so many may be asking what’s next for COVID-19 in a workplace context, what do we do next and is this the end of the pandemic? Emma and Christine now consider and answer some further questions arising from moral and legal impacts of the latest changes below.
Q. What happened on the 1 April 2022?
Three main changes now introduced in England are: -
- The removal of the guidance on voluntary COVID-19 status certification for domestic settings, and there are no longer recommendations that certain venues use the NHS COVID Pass;
- Tests – there is no longer free universal symptomatic and asymptomatic testing for the general public; and
- Removal of the explicit health and safety requirement for every employer to consider COVID-19 in their risk assessments.
Other jurisdictions (Wales and Scotland, for example) have moved at different paces on relaxation of covid control measures; therefore, if your business operates in other jurisdictions outside England, care should still be given to find out specifically what applies in your area.
Q. Does this mean that the pandemic is over….?
The reported numbers of positive cases in the UK continue to rise. Figures in April 2022 are higher than at other times in the pandemic. Hospital admissions are generally on an increase and the number of deaths between 26 March and 1 April 2022, showed a 17.5% increase over the previous seven days. However, between 26 March 2022 and 1 April 2022, 527,550 people had a confirmed positive test result, showing a -12% decrease compared to the previous seven days.
The above data demonstrates that the pandemic is not over, although perhaps with the roll out of the vaccination programme and other measures put in place earlier, overall health implications and severity of COVID-19 may now be fortunately less for many than it once was.
Therefore, the approach employers take next to manage their on-going path towards ‘Living with COVID-19’ will likely depend upon many things - their general risk appetite and what steps they had taken so far, whether they have vulnerable or ‘high risk’ persons working for them, and what is considered reasonable (as they would with any respiratory infections) within the context of their specific working environment.
Our first ‘Living with COVID-19’ article suggested taking slow-steps and exercising caution. Therefore, this would be a good time for employers to reassess how they have been operating in the workplace since February, and question whether any changes or relaxations that were made then have been effective, or can anything else be changed or learnt that can help make any further transition more straight forward.
Q. What does this mean for our health and safety legal obligations…?
There is no longer a strict legal requirement for employers to consider COVID-19 in risk assessments. The Health and Safety at Work etc. Act 1974 applies in so far as ‘material risks’ which arise from an employer’s business operations and undertaking, and because of the relaxation towards covid now in society – it is no longer a legal requirement for businesses to explicitly consider the management of COVID-19 in workplace risk assessments.
Nonetheless, it is important that businesses, organisations and employers continue to comply with any wider legal obligations that relate to health and safety, employment and equality duties. Morally, there is a strong argument that employers could be keen to rebuild trust, act ethically and consider the views of its workforce going forward. Staff can even legally refuse to attend the workplace and an employer could be at risk of future claims, if a worker considers there to be an imminent or serious danger to their health.
If an employee is penalised or is dismissed for refusing to return to work, in these circumstances then they may be able to pursue claims in the Employment Tribunal for unfair dismissal and/or a detriment. This issue was discussed in more detail in our previous blog. We therefore recommend that legal advice is taken before any dismissal or disciplinary action is taken against an employee who refuses to come into work.
The latest Public Health Guidance can found here – which despite relaxations still includes encouraging vaccinations, letting fresh air in, good hygiene (e.g. increased hand washing, reinforcing good / basic hygiene ‘catch it, kill it, bin it’ campaign, as well as things like increased sanitisation or cleaning) and also, considers an option to wear a face covering or mask voluntarily in certain circumstances. For example, this may include masks being promoted as optional or used on an individual basis as preferred by workers, or perhaps in situations of close contact, or when working in crowded or enclosed spaces.
The Workplace (Health, Safety and Welfare) Regulations 1992 also specifically requires that there is effective and suitable provision of ventilation and cleanliness in the workplace. Therefore, still having a risk-based assessment to take account of these areas, would be a good way of demonstrating compliance and determining what is needed for your environment. This may include, for example, identifying any areas of poor ventilation, and what steps could be taken to help improve air flow. The Health and Safety Executive (HSE) also recently updated its website pages with information why ventilation at work is generally important.
There is still specific guidance and requirements for those in healthcare, hospital and care settings with particularly infectious patients, or that come into contact with covid directly as part of their work for example, in a lab-based setting carrying out research or testing. Some further guidance on ‘infections at work’ in these specific environments can be found here. In the latter, The Control of Substances Hazardous to Health Regulations 2002 (COSHH) will still require there to be specific consideration for any workers that would come into direct contact with COVID-19. A risk assessment is required for those settings and by law, there must also be adequate control measures implemented. COSHH would not apply, however, within the context of one employee catching a respiratory infection from another, for example, or where a member of the public could have infected an employee through general workplace transmission.
Q. What does this mean from an employment perspective…?
Although employers may have initially rejoiced at the ‘Living with COVID-19’ strategy, in reality this deregulation could actually create more of a headache. Many matters that were previously dictated by law and guidance, have now been handed over to the discretion of employers and the individual employees. This lack of clear rules and uncertainty creates a minefield, from which many Employment Tribunal claims are likely to arise.
In the first instance, we recommend that employers take time so carefully now to consider and communicate their applicable policies on matters, such as:-
- What sick leave and pay will be given to employees who test positive? We comment upon this issue further below.
- Will employees be required to test on a regular basis, and if so, who will be responsible for the cost of these tests? If testing is to be required, employers will generally be expected to provide the required kits.
- Should any employee who tests positive, or has symptoms and is still well enough to work come into the workplace? As there is no longer a legal obligation upon employees to inform their employer of a positive test, it is advisable that the appropriate policy makes is clear if reporting is still required, and what the consequences of failing to do so are.
- What special measures are required to protect those who are at a higher risk of serious illness, or live with someone who is? Some employees will be entitled to enhanced protection in accordance with the Equality Act 2020, with reasonable adjustments being required to prevent them from suffering a substantial disadvantage as a result of a disability. This could include staggered work times, altered working hours to avoid busy times in the workplace and physical changes to the workplace.
The lack of regulation means employers have been left to wrangle these issues, whilst also complying with the overall applicable employment law and health and safety regulations.
We strongly encourage employers to enter into an open dialogue with and consult their employees, in order to understand their attitudes towards the changes, and use this information to shape the policies that will need to be put in place. Although there is no ‘one size fits all approach’, engaging with the workforce to establish a clear and fair strategy in light of the recent changes will help to ensure that any issues are dealt with early and promptly before matters escalate.
Once these policies have been decided upon, communicating expectations to employees is key. It is likely that the fairness of any action that is taken by Employers in response to any breaches will be determined by the clarity of the rules, and the purpose behind them.
Q. Someone has symptoms or is positive – can they come to work?
‘Whole employee’ health, and occupational health has recently attracted increased focus by many, and campaigners / advisors such as Professor Dame Carol Black (a medical practitioner and government advisor on issues such as ‘Wellness at Work’, Sickness Absence and ‘Working for a Healthier Tomorrow’ campaign – amongst others) has recently stated more strategic focus needs to be placed on employee health, and in turn help tackle issues around ‘presentism’ in the workplace.
With any cold or respiratory infection, should an employee be expected or required to come into work? Are they well enough to do so? What is the real demonstrable output or benefit to employers if their staff are working when unwell? Further consideration should be given about other workforce or visitors catching any infection, which may lead to multiple people absent on mass. The latest general guidance for those with symptoms can be found here.
The recognised symptoms of coronavirus (COVID-19) in adults have also been extended. As well as a high temperature, new continuous cough and a loss or changes to sense of smell, COVID-19 symptoms now also include shortness of breath, tiredness or exhaustion, aches, sore throats, blocked or runny noses, loss of appetite, diarrhoea or being sick, much the same or similar to other illnesses, such as colds and flu.
Therefore, whilst the ‘world of work’ needs to return to normality, sector-specific guidance has been replaced now with general public health guidance, and the message employers should be giving to staff is that if they have any of the above symptoms or test positive for COVID-19 – firstly, are you fit and well enough to work? If not, take the time off and feel better to recover as you would with any other illness, until well enough to return, or no longer have a high temperature.
In any other case or if you continue working, still try and stay home and avoid contact with others, where possible. Reasonable adjustments may be needed to accommodate this (if only as a temporary measure), or until they feel well enough to return, or until they no longer have a high temperature or otherwise test negative. It has been said people tend be the most infectious within the first five days of COVID-19, so employers and employees will need to consider how best to approach working arrangements collaboratively during that time, how to best support and enable their workforce to follow the new guidance as far as possible, and have careful regard to any vulnerable employees or persons affected by its business.
The new guidance also recommends that anyone with symptoms or a positive test result who needs to leave their home should avoid close contact with those with weakened immune systems, wear a face covering and avoid crowded places.
Q. Should we be paying sick pay in relation to COVID-19…?
In circumstances where an employee is well enough to work, and is able to do this from home, they can be asked to do so and receive their usual wage payment.
However, changes have occurred which impact those who are not able to work from home, and those who feel too unwell to work. Statutory Sick Pay (SSP) is no longer automatically payable to employees who test positive and the temporary rules about SSP relating to Covid-19 were revoked as of 25 March. SSP is now payable only if the employee is unable to work, and only following day 4 of a period of incapacity. We discuss this in more detail in our recent article.
As a result , if an employee tests positive or feels unwell, they may be reluctant to inform their employer or take time away from work, especially if they are symptom free. This will could obviously result in increased transmission of COVID-19 throughout the workforce.
Many employers are therefore choosing to enhance the sick pay offered to employees in order to encourage a culture of honesty and transparency, which will hopefully reduce the transmission of COVID-19 within the business. This enhancement could include offering a payment equivalent to SSP from day one of the absence, or overall enhanced sick pay for a period of isolation. If an enhancement is to be offered and is limited only to circumstances where an employee tests positive, consideration will need to be given as to how this can be evidenced and policed in order to avoid false reports.
As employees are no longer under a legal obligation to self-isolate when testing positive, if an employee who tests positive is unable to work from home and presents themselves ready, willing and able to work, they will be entitled to be paid their usual wage even if the employer asks them to stay away and isolate. We therefore recommend that legal advice is taken before any wage payments are withheld.
Q. Tests are no longer free… so how can I show that I am negative?
Eligibility for free tests (lateral flow or PCRs) will only be provided in limited circumstances (e.g., specific health conditions, if you are going into hospital for surgery or a procedure, if you work in health or social care settings, or have been referred to get tested by your GP or health practitioner).
If you still want to get tested for a work reason, and you are not otherwise eligible for a free NHS test, you must pay for a COVID-19 test yourself. Tests can be bought from some pharmacies and retailers either in person or online, as is the case for the majority of the general public.
Employers who previously adopted testing programmes into their arrangements for managing COVID-19 or bring the workforce back in, are advised to revisit such policies. There is no legal obligation to supply or require tests, but those who had paid for or supplied tests to workers previously may need to consider whether it may at its discretion wish to source and pay for tests to staff (either for all or perhaps, only in specific circumstances) for example, if you have to accommodate any ‘high risk’ or vulnerable workers. Conversations should be had with those individuals to consider how this will be managed, and adjustments may be needed on a case-by-case basis, taking into account the level of risk posed or on advice of their GP or medical practitioner.
Q. With the increased relaxation of restrictions and no more free testing, employees are naturally more likely to catch COVID-19 now from each other even with some controls in place – is there any legal obligation under RIDDOR (The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013) to formally report these cases to the Regulator?
RIDDOR applies in the context of only ‘work-related’ triggering events, meaning that have arisen out of and/or in connection with work.
The HSE latest guidance states that if employees have inadvertently passed COVID-19 between each other, or indeed if an employee should contract it from a member of the public or someone outside of their organisation but whilst at work but just through ‘general transmission’, this is not reportable.
There can be certain triggering work-related events (for example, such as hospital, care or lab-based settings) where people are directly working with the virus, that may require a report to be made. Legal advice is recommended and should be taken if in doubt about when RIDDOR applies or what may be reportable.
We will continue to monitor this carefully, and bring you any further updates as they arise. If you need any further specialist advice, support or clarity in relation to your own circumstances or in relation to any of the issues raised above, please do not hesitate to contact our Employment or Regulatory Teams.
