Living with Covid-19 in the workplace

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Living with Covid-19 in the workplace

The Government has announced an end to all domestic Covid regulations in England. This article considers the practical impacts of recent and forthcoming changes. It explores the possible adjustments in managing workplace environments, as well as the challenges that might arise.

What’s new?

The headline features of the Government’s Living with Covid-19 guidance which affect workplaces are as follows:

1.     Self-isolation

As of 24 February 2022, the legal requirement to self-isolate has been removed. Now, the Government advises individuals who test positive for Covid-19 to stay at home and avoid contact with other people for at least five full days. Individuals can then return to their normal routine after receiving two negative lateral flow tests on consecutive days. Therefore, employees testing positive for Covid-19 no longer have a legal obligation to self-isolate and inform their employers to that effect.

2.     Statutory sick pay (SSP)

Provisions on SSP revert to their pre-pandemic position from 24 March 2022, with the right to claim from the first day of Covid-related absence discontinued. An individual ill with Covid-19 will then only be paid from their fourth day of absence.

3.     Risk assessments

From 1 April 2022, employers will no longer need to explicitly consider Covid-19 in their risk assessments as a health and safety requirement.

4.     Testing

The Government will no longer provide free universal symptomatic and asymptomatic testing for the general public in England from 1 April 2022. Limited free symptomatic testing will remain to a small number of at-risk groups to be outlined by the Government and to social care staff.

What will workplace rules look like now?

This will depend on what employers decide to do in response to the changes. Effectively, the onus is shifting to employers to manage Covid-19 related matters. Going forward, employers have the choice to implement rules which go beyond Government advice. Measures employers could maintain or introduce in trying to achieve a safe workplace include the following:

  • Stipulating that Covid-19 positive or symptomatic employees work from home (if possible) or self-isolate for a specified period of time.
  • Extending company sick pay to encourage workers to stay at home if they are Covid-positive or symptomatic and unable to work from home. An important caveat is that individuals who feel well enough to work will likely be ineligible for SSP and company sick pay. If workers are required to stay at home in these circumstances then they will be entitled to full pay.
  • Providing workplace testing. The need to pay privately for testing will undoubtedly be a disincentive to employees to continually screen for Covid-19 or test if symptomatic. Employers might therefore introduce or maintain workplace testing capacity to encourage practices which will help to identify Covid-19 risks and engender appropriate responses.

Of course, some measures may bear cost implications. Naturally, a cost-benefit analysis may be necessary to ensure that the workplace rules can be reconciled with business priorities all-round.

Is the design of new workplace rules a risk-free enterprise?

Unfortunately not.

It’s possible that the licence granted to employers will come with exposure to grievances from employees about the impact of workplace rules. There may be objections on the basis that rules have a detrimental impact on particular members of the workforce for reasons which relate to protected characteristics. This could create exposure to claims under the Equality Act 2010. It might also be that an approach which is perceived as too permissive is subject to complaints about persisting or emergent health and safety concerns, with employees seeking to rely on protections under the Employment Rights Act 1996.

It’s likely that the key to getting balance right is encapsulated by the Government’s motivation to “empower businesses to take responsibility for implementing mitigations that are appropriate for their circumstances”. As an example, the Government guidance declares that employers that specifically work with Covid-19 (such as laboratories) “must continue to undertake a risk assessment that considers Covid-19”. In addition, the guidance highlights that employers should still “consider the needs of employees at greater risk from Covid-19, including those whose immune system means they are at higher risk of serious illness from Covid-19”.

Akin to the likely prospects for no jab no job policies, the expectation is that judgment on propriety of workplace rules will focus on the relevant attributes of the specific workplace in question within the wider context of the existing state of the pandemic. Employers will need to be watchful of the developments in the pandemic, remain live to the risks identified above and be willing to re-evaluate workplace rules and policies and make any necessary changes.​​​​​​

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