Coronavirus – FAQs on workplace policies and decisions for “Living with Covid”
06 April 2022
On 21 February the government launched its “Living with Covid” strategy. As a result, many of the Covid measures in England have changed significantly. Despite this deregulation, difficult questions for employers on a range of employment law issues remain. Many decisions previously dictated by law and guidance are now in the hands of employers and individual employees to make.
These FAQs cover topics including:
- self isolation
- health and safety obligations
- office attendance
- responsibilities to vulnerable staff
See also our FAQs on vaccination.
The latest position is as follows:
- Universal free testing ended on 1 April and the government no longer recommends either symptomatic or asymptomatic testing for most people.
- Under new public health guidance released on 1 April, if an individual has symptoms of a respiratory infection (which would include Covid), and they have a high temperature or do not feel well enough to go to work or carry out normal activities, they should try to stay at home and avoid contact with other people. They should remain at home and avoid contact until they no longer have a high temperature or until they no longer feel unwell.
- If someone does test positive for Covid, the advice is to try to stay at home and avoid contact with other people for 5 days after the day the test was taken. Those who have received a positive test are advised to work from home if they can or to talk to their employer if this is not possible.
- Contract tracing has ended, with the onus now on individuals to take steps to reduce the risk of transmission. To assist with this, new guidance has been published on living safely with respiratory infections.
- Workers are no longer legally obliged to tell their employer when they have Covid.
- The special rules about statutory sick pay and Covid have been revoked.
- From 1 April employers are no longer required to explicitly refer to Covid in their health and safety risk assessment, although may continue to choose to do so.
- Sector specific working safely during coronavirus guidance has been replaced with new public health guidance on reducing the spread of respiratory infections in the workplace.
Health and safety at work
What official guidance is in place from 1 April?
The key pieces of guidance now in place which are particularly relevant to employers are:
1. Workplace specific public health guidance on respiratory infections, including Covid;
2. Guidance for those with symptoms of a respiratory infection, including Covid; and
3. Guidance for living safely with respiratory infections, including Covid.
Do individuals who have symptoms of a respiratory infection have to self isolate?
From 1 April, those with symptoms of a respiratory infection (which would include Covid), and who have a high temperature or do not feel well enough to go to work or carry out normal activities, are advised to try to stay at home and avoid contact with other people until they no longer have a high temperature or until they no longer feel unwell.
Potential symptoms are listed as:
- continuous cough
- high temperature, fever or chills
- loss of, or change in, your normal sense of taste or smell
- shortness of breath
- unexplained tiredness, lack of energy
- muscle aches or pains that are not due to exercise
- not wanting to eat or not feeling hungry
- headache that is unusual or longer lasting than usual
- sore throat, stuffy or runny nose
- diarrhoea, feeling sick or being sick.
Workplace public health guidance directs employers to consider how to reduce the spread of respiratory infections such as Covid and flu in the workplace.
Do individuals who test positive for Covid still have to isolate?
The legal obligation to self-isolate after receiving a positive Covid test has ended as has universal free testing.
Tests can of course be purchased privately and testing may remain a useful precautionary measure in some circumstances. Nevertheless, government public health guidance no longer explicitly recommends symptomatic or asymptomatic testing.
If an individual does receive a positive Covid test result, however, they are advised to try to stay at home and avoid contact with other people for 5 days after the day they took their test. If at the end of this 5 day period they feel unwell or have a high temperature, the advice remains to try to stay at home until they feel well enough to resume normal activities, or no longer have a high temperature (if they had one).
During this period, an infected individual is advised to work from home if they can and if they cannot, to talk to their employer about the available options.
In what circumstances will SSP be available?
SSP is no longer automatically payable to employees who test positive. The special rules about statutory sick pay relating to Covid were revoked with effect from 25 March. SSP is now payable only if the employee is unable to work, and only from day 4 of a period of incapacity.
There are growing calls for SSP eligibility to be widened, and for SSP amounts to be increased but, to date, the government has rejected these calls. The new workplace public health guidance states that employers “may wish to consider how best to support and enable their workforce to follow this guidance as far as possible”. As set out above, compliance with the guidance would, in practice, mean that a member of staff should stay off work if they have any of the listed symptoms of a respiratory infection, and do not feel well enough to work or have a high temperature. Whilst the guidance does not specify what employers should do in order to “support and enable” compliance, employers could encourage employees to stay at home in these circumstances by offering company sick pay if they cannot work from home.
What is the position for close contacts of someone who has had a positive Covid test?
Close contacts are now classified as those who live with, or have stayed overnight in thes household of, someone who has Covid. Close contacts are no longer obliged or indeed advised to self-isolate or to take daily lateral flow tests.
Under the new public health guidance for people with symptoms of a respiratory infection, a close contact (whether vaccinated or unvaccinated) of someone who has had a positive Covid test result is advised to try to reduce the risk they pose to other people by:
- avoiding contact with those they are aware are at higher risk of severe illness if infected with Covid;
- limiting close contact with people outside their household, especially in crowded, enclosed or poorly ventilated spaces;
- wearing a well-fitting face covering if they do need to have close contact with other people, or are in a crowded place; and
- frequent hand washing / sanitising.
Close contacts are no longer advised to work from home in these circumstances and SSP ceased to be available to isolating close contacts from 25 March.
This means that if you ask a close contact to stay at home, and they do not do a role that can be done from home, full salary would probably need to be paid.
No specific recommendations are given for those who are close contacts of people with symptoms of respiratory infections (which could include Covid) but who have not taken a Covid test. In these circumstances, the standard advice in the guidance regarding day to day infection control measures would apply.
At the present time, when the drastic relaxation of Covid rules and guidance is not matched by a fall in infection levels, it may be difficult for employers to decide what policy to adopt with regard to close contacts. Many organisations are trying to encourage staff to return to the office, whether on a full time or hybrid basis. On the one hand, a cautious approach, encouraging close contacts to work from home if they may be in danger of spreading Covid, would slow down this process of reintegration. However, it would also have a number of benefits. In addition to protecting the wider public, it could reduce staff sickness absence and also give confidence to others that their workplace is a safe place to come back to.
This could be implemented by a clear policy, stipulating the period for which someone must remain at home and in what circumstances. Alternatively, an employer may choose a softer approach – encouraging staff to be considerate of others in the decisions they make about office attendance in these circumstances.
What steps must we take to manage the ongoing risks of Covid-19 in our workplace?
Despite deregulation, Covid infection levels remain high and infection in the workplace remains a risk.
All employers have statutory duties to provide a safe place of work and general legal duties of care towards anyone who may be accessing or using their place of business. To discharge these duties, you must take the following steps:
- Carry out suitable and sufficient risk assessments to identify the risks. Risk assessments should also look at different groups of workers (e.g. pregnant workers), for whom you may need to take extra health and safety measures.
- Implement measures to minimise those risks. You must take all reasonably practicable steps to minimise the risks. This is not the same as having to eliminate the risks altogether.
This obligation also extends to those who are working from home which we discuss in more detail here.
From 1 April there is no longer an obligation to expressly consider Covid in a risk assessment (in most situations) and this is considered further below.
In terms of practical steps, the new workplace public health guidance identifies the following as actions which can be taken to reduce respiratory infections in the workplace:
- encouraging and enabling vaccination;
- ensuring good ventilation; and
- maintaining a clean workplace.
According to the guidance, these steps should be promoted and applied more rigorously if infection levels in the workplace are high.
This guidance also recognises that some workers, such as those with a weakened immune system, are at greater risk of serious illness from Covid, and there is specific guidance for those whose immune system means they are at higher risk that employers should be mindful of.
Reflecting the fact that there is now a greater emphasis on taking personal responsibility for infection control, some additional preventative measures are set out in the general guidance for living safely with respiratory infections which are not addressed in the workplace guidance. These are remembering the basics of good hygiene; and considering wearing a face mask in some circumstances (which we consider further below).
Both of these could usefully be factored into workplace plans and policies.
Should we continue to address Covid in our risk assessments after 1 April?
On 1 April, the obligation for all businesses to specifically address Covid in risk assessments was revoked. The new workplace public health guidance states that employers may now choose to continue to cover Covid in their risk assessments.
Employers whose workers come into contact with Covid directly through their work (e.g. by researching the virus in laboratories) or due to their work activity (e.g. health and social care workers caring for infected patients) must still undertake a specific Covid risk assessment and implement control measures. However, this obligation would not extend to the transmission of a respiratory infection (including Covid) in the workplace, either between colleagues or from a member of the public.
Although the new guidance places the risk of Covid and other respiratory illnesses such as flu on a much more even footing, many may continue to feel that Covid is not yet like flu: it is both more contagious and more dangerous for some people. Those who are at higher risk of severe illness if infected with Covid-19 may be anxious about the risk of contact with Covid-positive colleagues and customers and employers should be sensitive to this both in their assessment of risk and in their management of staff. Employers should continue to address how they will deal with the risk posed to this group of people in the risk assessment.
We discuss vulnerable workers in more detail here.
In addition, although the obligation to explicitly address the risk of Covid has been revoked, it remains important to clearly address what employees with symptoms of respiratory infections should do. In fact, the new workplace guidance expressly states that staff and employers should “be aware” of relevant symptoms. This should be considered when preparing both policies and risk assessments.
Should employees wear face coverings at work?
There is no longer any legal requirement to wear a face mask and face masks are not referred to in the new workplace public health guidance.
However. the guidance on living safely with respiratory infections recommends wearing a face mask in the following situations:
- when you are coming into close contact with someone at higher risk of becoming seriously unwell from Covid or other respiratory infections;
- when Covid rates are high and you will be in close contact with other people, such as in crowded and enclosed spaces; and
- when there are a lot of respiratory viruses circulating, such as in winter, and you will be in close contact with other people in crowded and enclosed spaces
In addition, as covered above, face masks are recommended in certain circumstances for close contacts of positive cases.
Although there is no specific guidance as to how this relates to the workplace, these principles could be usefully applied at work.
More generally, policies on the wearing of facemasks are likely to vary between business environments. Previous working safely guidance advised that employers should support workers who choose to wear a face covering in doing so safely and this remains sound advice. Any requirements on masks should be subject to reasonable adjustments for disabilities and employers should be sensitive to the fact that individuals’ personal assessment of risk may diverge significantly during this period of transition.
Must we publish our risk assessment?
Yes, in most cases. Although Covid specific risk assessment rules have changed, the law already says that significant findings from risk assessments must be written down if you have more than five staff.
How do we go about doing a satisfactory risk assessment?
The Health and Safety Executive (HSE) has published general guidance on how to do a risk assessment, although specific guidance on addressing the risks of Covid has now been withdrawn and replaced with a summary page linking to other advice.
It is important for employers to remember that you must assess the risks presented by your own workplace to your own employees, as well as contractors and visitors, and you may need to put in place additional controls or measures to mitigate them. The guidance is not the same as the law so your legal duties will continue alongside, and in addition to, the guidance.
For further information, please see our table of the practical steps that employers can consider taking to mitigate the various legal risks arising from employees coming to work during the pandemic.
What responsibilities do our employees have for their safety?
Employees have independent statutory duties to take reasonable care for their own health and safety, and that of other persons, and to co-operate with you to ensure that your rules are complied with. It remains important for you to educate and train your staff on the practices and policies you have decided to adopt. This should now include upholding good public health practices on infection control generally, as reflected in the new guidance on living safely with respiratory infections.
Should we consult employees or their representatives about our workplace safety plans?
Yes. Employers have a duty to consult their people on health and safety which applies regardless of the ending of legal Covid restrictions. This would include consulting on employees’ return to the office and any changes to health and safety plans in light of the “Living with Covid” strategy.
If you recognise a trade union, you should consult with your union safety representatives. Where workers are not already represented by union safety representatives, you have a statutory requirement to consult either employees or their elected representatives about health and safety - in particular, the introduction of new measures that could substantially affect their health and safety. The HSE has produced guidance about this here and here. It is a criminal offence not to comply, albeit not the type of offence that the HSE has actively prosecuted in the past. Employees do not themselves have any kind of civil remedy for failing to be consulted over health and safety matters (although they can bring claims about training – see below).
The first step is to check your health and safety policy to see if it says how you will engage with employees. Depending on any existing commitments in your policy, you may want to organise a body of employee representatives for this and other purposes - see our insight article on whether employers should set up a standing body for collective consultation. There is no set process for conducting elections and you might simply start by asking for volunteers.
You need to pay for any employee representatives to have such training as is reasonable in the circumstances. It is not clear that any training would be required for the purposes of consulting over the current situation, or indeed if any is available.
Consulting representatives can be easier and more effective than trying to consult employees directly, especially when consultation needs to happen remotely, and you could consider putting in place a representative body. If you do not want to set up a representative body, or you are concerned about the time it might take to do so, you can consult employees directly. To do this effectively without being able to hold physical meetings, you would need to consider open “town hall” meetings using apps such as Zoom, or other online employee survey tools.
Consulting employees not only mitigates your legal risk but is also likely to flush out issues and prevent problems when it comes to putting your plans into practice.
Can we be liable if an employee contracts Covid at work?
Yes, potentially, but only if the employee can show both of the following:
- You, as the employer, were negligent in some way, or one of your employees acted negligently in the course of their employment so that you are found vicariously liable.
- The negligence caused or materially contributed to the claimant contracting Covid-19.
In practice, claims are most likely to come from vulnerable employees whose symptoms may be more severe.
Given the high level of community transmission, it will be difficult in practice for employees to establish on the balance of probabilities that exposure at work was the cause of them contracting the virus. Even if an employee does contract Covid-19 at work, you will not be liable unless they can also show that this was the result of negligence, i.e. a breach of your duty of care or statutory responsibilities.
So, to ensure that you are in the best possible position to defend a negligence claim, regulator investigation or criminal prosecution, you need to make sure that you – and your workforce - are complying with any remaining government guidance and taking any additional precautions required.
Do we need to make a RIDDOR report if an employee contracts Covid?
Covid-19 remains a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR). However, the HSE has confirmed that employers should only make a report under RIDDOR when one of the following circumstances applies:
- An accident or incident at work has, or could have, led to the release or escape of coronavirus (SARS-CoV-2). This must be reported as a dangerous occurrence.
- A worker has been diagnosed as having Covid-19 attributed to an occupational exposure to coronavirus. This must be reported as a case of disease.
- A worker dies as a result of occupational exposure to coronavirus. This must be reported as a work-related death due to exposure to a biological agent.
The reporting requirements apply only to cases of “occupational exposure”, that is, as a result of a person’s work. This seems to cover employees such as laboratory technicians, nurses, other health care workers and those involved with testing etc and has limited application to the wider UK workforce.
What about insurance?
You should already have Employers’ Liability Insurance in place to cover the risk of claims from employees about injuries or illnesses suffered in the course of employment. Your public liability insurance should cover claims from visitors or customers etc. You should check the scope of your cover, and whether you have any specialist health and safety insurance in place, including claims against directors. Remember to keep your insurers up to date if any claims are threatened.
What processes do we need for employees to flag concerns about potentially unsafe practices at work?
Now that workplaces are adjusting to “living with Covid”, employers have more discretion to determine what they consider appropriate health and safety measures for their workplace. It is likely that some employees will feel unhappy about your assessment of risk, or about the behaviour of their co-workers, and wish to raise their concerns formally.
It remains good practice to have processes in place to enable employees to raise concerns and for this to be set out clearly in a policy. This process may be specifically for health and safety issues or be a general whistleblowing – or “speak up” - mechanism.
It is important to remember that a complaint that “the health and safety of any individual has been, is being or is likely to be endangered” counts as a protected disclosure for the purposes of whistleblowing legislation, and to ensure that:
- Someone is given responsibility for investigating the concerns.
- There is a defined escalation process.
- Managers are clear about the process for dealing with concerns and can signpost it to employees.
- You take any steps required to address legitimate concerns, e.g. by adjusting your health and safety approach or disciplining individuals who have behaved irresponsibly.
- Nobody takes retaliatory action against any employee who complains. Employees may be protected as a whistleblower, even if they did not use the whistleblowing policy. In one recent Employment Tribunal (ET) decision, the ET was not satisfied that an employee raising safety concerns was a whistleblower because he was only concerned about his father’s health and this did not meet the public interest test. The ET thought that the point was arguable, however, so it could be decided differently in other cases.
- You comply with applicable data and privacy requirements.
Do employees have a right to be notified if a colleague has suspected or diagnosed Covid-19?
No, there is no specific right. You owe the colleague a duty of confidentiality and data privacy obligations which would ordinarily mean that you should not disclose details about their health. You do have a duty of care and statutory health and safety responsibilities towards your other employees, but the fact that the definition of “close contact” is now limited to those within the same household must logically limit the need to warn co-workers of potential infection.
How should we protect our staff from abuse by visitors and customers?
The removal of legal Covid restrictions may well lead to a divergence in approaches to health and safety between businesses, and also a divergence in what visitors and / or customers consider to be reasonable or appropriate behaviour. This could well be a source of tension in the workplace and result in abuse directed towards staff, particularly in the retail and hospitality sector.
A failure to deal with abuse of this nature may be a breach of the implied term of mutual trust and confidence, leading to constructive dismissal claims. In addition, your duty of care to protect your employee’s health and safety can extend to protecting them from customer abuse.
Where abuse by customers is related to the employee’s gender, race or other protected characteristic, you should take account of the detailed guidance produced by the EHRC. The law that made employers explicitly liable for third-party harassment was repealed several years ago (although its re-introduction is under consideration), but this guidance explains why employers should nevertheless ensure they respond robustly to this sort of behaviour.
Make sure that managers and other employees know they should not put themselves in personal danger resulting from customer abuse. All managers should have received training on how to deal with this type of situation, including calling the police in certain circumstances. Posters warning customers that any harassment or violence towards staff will not be tolerated can also be helpful.
Remember that you ultimately have the right to deny entry to your premises.
How should we address tensions between staff who have differing views about what is appropriate behaviour?
As legal regulation and guidance relating to Covid is removed, but infection levels remain high, the scope for disagreement about appropriate behaviour will increase. This could lead to tension and disputes between co-workers.
There are a number of steps you can take to minimise these risks and difficulties:
- Operate clear health and safety policies on which staff are trained and consulted. This will help staff understand how they are expected to behave at work.
- Use existing grievance procedures to resolves concerns informally or, if necessary, follow a formal grievance process.
- Ensure that line managers have training to mediate these kind of tensions and, if not, seek the appropriate external support.
- Consider reminding employees about the need to be tolerant and respectful of those they work with and the measures others might wish to take to protect themselves during this period of adjustment.
What is the position if our business or our employees are based in Scotland, Wales or Northern Ireland?
Public health matters can be decided independently of the UK government by the local governments of Scotland, Wales and Northern Ireland, but employment law can only be decided independently in Northern Ireland. This creates scope for complexity.
The current workplace safety guidance has been published by the Westminster government. Scotland, Wales and Northern Ireland have, however, published their own guidance, which businesses based there will need to comply with.
Has all work from home guidance now ended?
Yes. The guidance to work from home was removed in January. This may, however, still be an appropriate option particularly for vulnerable employees, and we consider this further below.
Many employers may be considering their longer-term position on remote and hybrid working. See further detail on this in our Inbrief on hybrid working arrangements and FAQs on working from home.
What if our staff are worried about using public transport to get to work?
Employees returning to the office may have understandable anxieties about using public transport, particularly as transport capacity has increased and the wearing of face masks has decreased.
You should be sensitive to these concerns, particularly as people continue to adjust to the removal of restrictions, and consider how these can be addressed on a case by case basis. Solutions could include adjusting hours, providing extra parking and taking steps to enable more cycling.
Can an employee still say that they cannot come to work, citing serious and imminent danger?
By way of background, all employees have a statutory right not to be subjected to any detriment or to be dismissed for refusing to come to work in circumstances where the employee has a reasonable belief that they or others are in “serious and imminent danger”. For the purposes of this statutory protection, the issue is whether the employee reasonably and genuinely believes they or others are in serious and imminent danger. It’s not relevant that you disagree about the danger – the question is whether the employee’s perspective is reasonable. This can include danger caused by the behaviour of work colleagues. In situations where this protection applies, the employee would potentially be entitled to stay at home on full pay for as long as they are refusing to return to the workplace because of serious and imminent danger.
This statutory provision was designed for extreme health and safety emergencies where an employee has no reasonable option but to take evasive action. It was not designed with Covid-19 in mind. Whether an ET will regard an employee’s concerns as “reasonable” will depend on the specific context. The fact that the population as a whole is now better protected against Covid, the dominant variant is less severe, and the legal obligation to self-isolate has been removed is likely to mean that fully vaccinated employees will find it more difficult to show it is reasonable to consider themselves in serious and imminent danger from Covid. Employees may need to show that they have a vulnerability and that there are significant health and safety lapses before this is reasonable.
We cannot know for certain when this argument may succeed but the risks of it doing so can certainly be reduced by continuing to be careful if your approach to health and safety. If an employee asserts that they are refusing to work for this reason, you need to make sure that you investigate their concerns and provide a reasoned and documented response. Remember your duty of care towards employees who are worried and ensure you are taking practical measures to support their mental health and wellbeing.
For more practical guidance on how to mitigate the risks of this type of claim, see our table.
What if an employee is not ill, vulnerable, in any special category or citing any particularly serious dangers but is unwilling to come to work?
You could potentially take disciplinary action against such employees if you are confident that you are complying with the government’s public health advice and taking are all reasonably practicable steps to control the risks.
Requiring an employee to attend the workplace is now more likely to be a reasonable management instruction than it might have been earlier in the pandemic, but disciplinary action could still result in constructive unfair dismissal claims. This means that it is important to explore the basis of the employee’s concerns both before and during the disciplinary process.
What if the employee is vulnerable and they are unhappy about coming to work?
Earlier in the pandemic, those identified as clinically extremely vulnerable (CEV) were advised to shield. Now the shielding programme has ended and thankfully most people identified as CEV are better protected by the vaccination programme. As a result, most people who were CEV are no longer at a substantially greater risk than the general population. As a result of this, government guidance for most people who were identified as CEV is to follow the same guidance as everyone else on staying safe and preventing the spread of coronavirus, in addition to any further advice from their own doctor.
The guidance does recognise the ongoing vulnerability of those who are immunosuppressed and provides specific guidance for people whose immune system means they are at higher risk. In terms of coming into work, this states that these individuals should “work from home if it feels right for [them]”, and if this is not possible to “speak to [their] employer about what arrangements they can make to reduce [their] risk”. This remained unchanged when the guidance was reviewed on 1 April.
The situation faced by employees previously classified as clinically vulnerable and extremely vulnerable will vary considerably from person to person and employers will not be able to adopt a single approach. Many vulnerable employees will be happy to come to work but some may face considerable personal risk and be very anxious.
Despite the significant relaxation of the guidance, it remains good practice as part of the employer’s general health and safety obligations (and potentially the duty to make reasonable adjustments) to prioritise these particularly vulnerable groups for the safest roles over anyone who is not vulnerable and to consider partial or full home working – potentially on a temporary basis - if feasible.
If a vulnerable employee resists coming to work on the basis of the risks to their health, take legal advice. It will also be important to consult with the employee to understand their concerns, and to consider getting occupational health advice. One option would be to continue partial or full home-working as a temporary flexible working arrangement. If this is not a viable solution then, depending on the circumstances, it may even be necessary to consider allowing a temporary period of unpaid leave, given the following legal risks:
- You owe a duty of care towards vulnerable employees. Failure to strictly enforce your precautions could result in a claim for negligence. Remember also that you will be vicariously liable for the negligence of your employees, some of whom may act in a thoughtless or irresponsible way.
- Many vulnerable employees will also qualify as disabled for the purposes of the Equality Act. This means they have the right to reasonable adjustments, which could potentially include staying at home (but we don’t believe that this would extend to a right to stay at home on full pay if they cannot work from home).
- It is also unlawful to operate provisions, criteria or practices which would put disabled employees at a disadvantage compared with non-disabled employees, unless this is justified. A policy of requiring vulnerable people to come into work could potentially be indirectly discriminatory and require justification. It may be hard to justify requiring an unwilling vulnerable employee to come into work if, for example, they would rather be on unpaid leave, they face serious personal risks, and other employees could cover their role or you could recruit temporary cover at minimal extra cost. Whilst it is not realistic for unpaid to continue indefinitely, it might be considered as a temporary measure in some circumstances while longer term solutions are considered.
What if the employee lives with a vulnerable person?
You do not owe a duty of care to people who live with your employees. However, it is still possible that employees in this situation could make a legal claim.
In a recent decision (Gibson v Lothian Leisure) an ET found that an employee was unfairly dismissed after he raised concerns about coming to work because he lived with his vulnerable father and reasonably believed that his father would be in serious and imminent danger. However, the context of this decision was very different to the current situation, now shielding has ended and vaccination rates are high.
Vulnerable household members could well be disabled for the purposes of the Equality Act and there is a concept of associative discrimination which could potentially be relevant here. UK law currently only prohibits direct discrimination against an employee because of their association with a disabled person. This covers situations where, for example, an employer treats someone worse because they have a disabled child than they would have treated them if their child was not disabled. This kind of associative discrimination would not be relevant to Covid-19 situations.
However, there is an anomalous and surprising decision of the European Court of Justice which suggests that associates of a disabled person might be able to claim indirect discrimination if they are affected by a provision, criterion or practice that puts disabled people at a disadvantage. (The case concerns a claim for indirect race discrimination made by an individual who did not share the disadvantaged group’s race). There is at least one ET judgment applying this ECJ decision in the UK but this is not binding and we do not know what the UK appeal courts would make of it given that the wording of the Equality Act does not appear to enable a claim to be formulated in this way.
If you do decide to let some employees remain on unpaid leave if they are very worried about the risks to somebody they live with, our view is that they would not be entitled to paid leave in these circumstances.
What if the employee is pregnant?
According to the most recent guidance for people previously considered CEV, pregnant women are strongly advised to get vaccinated.
Specific workplace guidance for pregnant women at different stages of their pregnancy has now been withdrawn and employers should consider standard health and safety advice for pregnant women, together with the general public health guidance.
In summary, all pregnant women should have a workplace risk assessment. If a significant health and safety risk is identified for any pregnant woman – which may be more likely if the woman is unvaccinated - the employer should adjust working conditions or hours to remove the risk, offer alternative work, or suspend the employee on full pay if the risks cannot be avoided and there is no suitable alternative work.
This advice reflects the general health and safety obligations towards pregnant employees and is not specific to Covid related risks. It may be possible minimise risk by taking extra precautions, for example to enforce safe distancing, adequate ventilation or otherwise reduce the risk of transmission in the workplace.
This right to be suspended on full pay does not apply to other vulnerable employees, and in practice means that pregnant employees are treated differently than other vulnerable people
What if the employee has anxiety or a similar condition which impacts on their ability to come to work?
Employees with some long-term mental health conditions may be disabled for the purposes of the Equality Act and it may be a reasonable adjustment to allow them to stay at home. They will not, however, be entitled to pay unless they are on sick leave or working from home. If you require their return, they may not be fit and able to work and may be signed off sick as a result, which would entitle them to sick pay under your usual policies.
Although the public health risks have reduced significantly, the quite sudden removal of many Covid restrictions and safety measures may well be source of anxiety for those with certain mental health conditions and employers should be sensitive to this.
What if employees are unable to come to work because they have no childcare?
Whilst it is some time since school closures, the move away from home working may present childcare challenges for some employees. Also, given the ongoing possibility of infection (and reinfection) from Covid, it is possible that children may continue to have higher levels of absence from their childcare setting than before the pandemic.
The four main options where employees have no childcare available are:
- Working from home.
- Applying for a period of unpaid parental leave if they are caring for a child under 18 and have more than 1 year’s service (a maximum of four weeks’ parental leave per child).
- Taking emergency dependant’s leave, which gives employees the right to a reasonable amount of unpaid time off where it is necessary to deal with unexpected events involving their dependants.
- Requesting annual leave.
Can an employee still be pinged by the NHS Covid-19 app?
The legal obligation to self-isolate has now ended, the NHS test and trace service has now closed, and the NHS website indicates that the NHS Covid app is being updated.
The website also states that if the app advises you to self-isolate, “please update the app to the latest version”. It is not clear when such an alert would still be activated, but as set out above “close contact” is now more narrowly defined. This means that unless an employee’s infected contact is a member of their household, they should simply continue to follow general guidance on living safely with respiratory infections.
What is the position for symptomatic testing from 1 April?
From 1 April free testing for Covid in England has ended and most people are no longer advised to get tested if they have symptoms of Covid.
Free symptomatic testing remains only for certain vulnerable groups.
What is the current guidance for asymptomatic testing?
Now that free testing has been abolished, the public health guidance on living safely with respiratory infections no longer expressly recommends asymptomatic testing as a way to mitigate risk and no mention of testing is made in the new workplace public health guidance.
Despite the abolition of free testing, should we screen staff for positive cases and fund tests?
There is no specific legal obligation to do so and the very focussed scope of government funded asymptomatic tested arguably indicates that the blanket screening of staff would not be the normal or expected scenario in the long run.
That said, 1 in 3 cases of Covid are asymptomatic. What is required to satisfy the employer’s duty of care varies depending on context. There may, therefore, still be a role for testing for certain roles or due to the presence of vulnerable individuals in the workplace. This will depend on the work setting, workforce, and risk assessment. If you decide to consider some form of screening, you should be able to explain why the business has decided testing is appropriate and what expectations you have of staff both in testing and compliance with other safety measures.
You might consider phasing out testing gradually, perhaps transitioning to a softer approach of recommending or encouraging testing in certain scenarios only. This could help the confidence of those returning to the workplace and allow time for confidence to increase in the “new normal”.
For employers wanting to carry out workforce testing, they would need to pay for the costs of doing so. Current indications are that tests will be around £20-25 per pack of 7 for individual consumers.
It is conceivable, however, that staff may be increasingly reluctant to continue with the invasive process of testing once this is neither legally required nor recommended.
Regardless of workplace controls, the guidance on living safely with respiratory infections emphasises the importance of ventilation and good hygiene. Were you to decide to continue any form of testing, it should not be at the expense of these basic infection control measures.
What happens if an employee receives a positive result?
Now that the legal duty to self isolate has been removed, employers continuing to require asymptomatic testing must be clear about what happens when an employee receives a positive result. Sickness absence policies may need to be modified for this purpose.
A key consideration is pay for those who test positive. If asymptomatic Covid-positive employees cannot work from home then you would also need to continue to pay them in full during any period when you ask them to stay away from work. SSP is no longer payable if the employee feels perfectly well and employees who test positive through asymptomatic testing may not fall within company sick pay policies as they are not actually absent through illness. Some companies may have already amended their company sick pay policy to address this issue, but it is important that this question is clearly covered.
Similarly, employers may also want to consider how someone’s absence further to a asymptomatic test would be treated for the purposes of any attendance management policy (for example, being used in a Bradford Factor calculation or triggering an employee into an attendance management review).
If we decide to mandate lateral flow testing after 1 April, what are the legal considerations?
Mandating testing is not without risk and of course still requires individuals to undergo an invasive and unpleasant test.
The main legal risks arise in relation to:
- Data privacy. Employers would need to ensure they had conducted a data protection impact assessment before processing any information and were satisfied that they were processing the data as a result of a legal obligation (e.g. complying with their health and safety obligations) or in the public interest of minimising the spread of Covid infections. The Information Commissioner has published new guidance on data protection and Covid following relaxation of government measures. This reminds employers that they will need an alternative lawful basis for collecting health data if they had relied on a specific legal obligation that has now been revoked;
- Employees with more than two years’ continuous employment, who could claim unfair dismissal if they were to be dismissed for refusing to comply with an employer’s order to submit to testing. It would then be for an ET to assess the reasonableness of the employer’s decision to dismiss. “Reasonableness” in this context is likely to be more difficult to demonstrate now that asymptomatic testing is no longer recommended by the government;
- National minimum wage. If mandating testing, employers would need to pay any workers earning the national minimum wage for their time spent taking the test; and
- Consultation. As set out above, employers have a duty to consult their people on health and safety. This would include any changes to workplace testing programmes.
In contrast to the position on mandating vaccination, it is unlikely that an employee would be able to claim that blanket mandatory testing would be discriminatory. There are few, if any, medical conditions that would prevent testing and be capable of amounting to a disability. It also seems unlikely that religious or other beliefs against testing would give a valid discrimination claim - although that does not prevent employees with strong views attempting to use this route to obtain an exemption from compliance.
If you do decide to continue requiring asymptomatic testing in order to attend the workplace, it is would be less risky to take an “information and encouragement” route of strongly urging employees to embrace testing and providing them with the means to do so, rather than making it mandatory.
Are there any tax exemptions in place where we pay for testing?
There are currently two tax exemptions in place where the employer pays for testing - one for employer provided tests and one for the situation where the employer reimburses the costs. Both have been extended until 5 April 2023.. (There is also the exemption for trivial benefits, but this would apply only if the employer purchased the tests and gave them to the employee and only up to a limit of £50 per year.)
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