Living with Covid FAQs
Changes to Covid rules were put in place on 24th February and will have implications for how employers manage Covid related issues in the workplace in the future.
The first thing to say is that Communication is Key. The changes in the rules place the responsibility for managing Covid risk onto individuals, rather than the rules being mandated by Government. As such, businesses will need to think carefully about the workplace and industries in which they operate and consider how they want to approach the ongoing existence of Covid within the organisation.
The Government has issued some guidance and will be publishing updated Public Health advice and guidance to apply from 1st April but it will be important that each business communicates its expectations to employees and sends clear messages about reporting requirements, behaviour, obligations and consequences. This information should be included in a policy (which we are currently preparing) that all employees can access so there is no confusion about the company’s requirements.
In this article we will outline some of the key questions and points of advice that arise from the new guidance that applies from 24th February. Amended guidance is likely to be published and relevant from 1st April so, for now, we appear to be in a transitional period.
Do employees have to tell me if they have Covid?
If an employee tests positive for Covid, there is no longer a legal requirement to notify their employer. If you want employees to continue to notify you if they test positive for Covid or have been in close contact with someone that has tested positive, you will need to implement a Company policy containing that requirement and clearly communicate your expectations to employees.
Can I required staff to come into work if they have, or might have, Covid?
There is no longer a legal requirement to self-isolate if an individual tests positive for Covid. However, Government guidance states that the self-isolation for positive cases should continue for a minimum of 5 days and until 2 negative lateral flow tests have been received.
All employers will continue to have a duty to protect the health and safety of the workforce and should, therefore follow guidance issued by the Government and encourage employees to self-isolate on receiving a positive test result.
Can I require staff to work from home if they have, or might have, Covid?
In order to comply with Government guidance and your duty to protect health and safety, requiring an employee to work from home whilst positive for Covid is likely to be a reasonable measure.
Employees that continue to work, but from home, will be entitled to full pay for periods of work.
Can I require staff to remain away from the workplace if they have or might have Covid?
If an employee is not able to work from home then, where your health and safety risk assessment indicates it’s necessary, you will be permitted to require an employee to remain away from work and self-isolate in accordance with Government guidance.
What do I have to pay an employee if they are self-isolating?
Employees that are ready, willing and able to work are entitled to be paid during periods of absence that are caused by a third party, including their employer.
The combination of a statutory requirement to isolate in certain circumstances and relevant periods of self-isolation being “deemed incapacity” under the sick pay regulations, has meant that employees have not been considered “able” to work during isolation and have been entitled to SSP. This will remain in place until 24th March.
However, the Covid provisions relating to sick pay will be revoked after 24th March. Employees with Covid may still be eligible to receive SSP if they meet the normal eligibility requirements. Ultimately, an employee that is not well enough to work because of Covid may be entitled to SSP paid from day 4 of their absence.
If an employer requires an employee to isolate because of a positive Covid test, but the employee is still willing and able to work, an employee may be entitled to be paid full pay during the period of absence. This is because it is the employer’s determination of risk that results in the employee not being permitted to work rather than them not being capable of doing so.
If, following an assessment of risk, you consider it safe for an employee that has received a positive covid result to be in the workplace but they refuse to attend work you will need to consider the reason for the refusal. Until 24th March the SSP Covid rules remain in place and the employee will be entitled to SSP if they isolate.
However, after the 24th March, if the employee is not well enough to work they will be entitled to SSP. If the reason for remaining away from the workplace is because of serious and imminent risk to the health and safety of the individuals or others then you cannot subject the individual to a detriment. If there is a risk to others from the employee attending work you may need to pay them full pay during the absence. However, if you have assessed that there is no serious risk in them attending work but they are still not willing to return then their absence may be unauthorised and therefore unpaid.
There will be a balance to be found between managing the sick pay costs of Covid related absences and protecting health and safety of the workforce. Removing or reducing pay is likely to have the effect of discouraging employees to notify of positive tests and isolation.
What if staff without Covid do not want to work because a colleague might have Covid?
If an employee reasonably believes there to be a serious and imminent risk of danger, they may remove themselves from work or a dangerous place at work or take appropriate steps to protect themselves and others from that danger.
It is recommended that employers continue to follow Working Safety Guidance issued by the Government, including Covid safe measures to protect employees and mitigate risks associated with Covid. If you implement such measures and comply with your duty to protect your employee’s health and safety, it may well be difficult for an employee to argue that their believe in the danger is reasonable or that it is in fact serious and imminent.
Where there is no such risk, you can require an employee to attend the workplace and a refusal to do so could be considered unauthorised absence. However, where such danger could reasonably be perceived to exist, you must ensure that the employee that takes steps to protect themself is not treated detrimentally or dismissed as a result of their actions.
Will staff need to provide a doctor’s note for absence?
At present, the system for obtaining Isolation Notes as evidence of a need to self-isolate remains in place. However, further guidance will be issued on 1st April and it’s currently unclear whether this will remain.
What if an employee is insistent that they want to continue to work from home and not return to the workplace?
If an employee is seeking a permanent change to their working arrangements they should make a Flexible Working Request. You will need to deal with that request within a reasonable time frame and no longer than 3 months and give due to consideration to the reason for the request and whether it can be accommodated.
Is an individual’s vaccination status still relevant after the covid rules are removed?
An employee that is unvaccinated could well be more vulnerable than other members of staff and that should be taken into consideration within risk assessments. However, in general, there should be no difference in treatment in respect of the requirements to isolate or rates of pay during such isolation between those that are vaccinated and those that are not. Entitlement to sick pay is not normally limited depending on the reason someone has become unwell so the same rules should apply. It’s unlikely that contractual sick pay schemes currently differentiate between those that are and are not vaccinated and so the rules should apply equally to both. Where company sick pay scheme are discretionary, the company could exercise discretion to treat employees that are vaccinated differently to those that are not in terms of payments due when sick because of Covid but such decisions must not be discriminatory. You will therefore need to explore and understand the reason why an employee is not vaccinated.
Does my business need to think about creating new policies now?
You should now consider putting in place a policy clearly outlining expectations when an employee has Covid symptoms or tests positive for Covid. We are currently working on creating such a policy and this will be available as soon as possible.
Can I continue to require employees to carry out lateral flow tests before attending work or on a regular basis?
At present, lateral flow and PCR tests remain freely available to the public. However, this is due to change on 1st April when free testing will only be available to the over 75’s and those that are vulnerable due to medical conditions. From 1st April there will be a private commercial market for testing. If you require employees to continue testing after that date you should take steps to provide staff with the tests required as they will not be able to obtain them without charge.
Updated Public Health guidance will be provided by the Government in respect of expectations and advice from 1st April onwards.
Author: Sarah Edwards, Senior Employment Law Solicitor at Howarths