On 21 February 2022 the UK government set out its plan for living with Covid and published a new paper Covid 19 Response: Living with Covid-19. The strategy marks a swift move away from state intervention towards individual responsibility, with the promotion of vaccines and updated public health guidance underpinning the Government’s strategy for living with Covid.
Northern Ireland’s remaining Covid restrictions have recently been revoked and are now guidance only. The Welsh government has said that it could remove its remaining Covid restrictions at the end of March and a review is due to take place by 4 March 2022. Nicola Sturgeon has also unveiled provisional plans for Scotland, which include an end to various Covid restrictions from 21 March 2022.
(a) A snapshot of the key changes for employers in England:
- From 24 February 2022: Anyone who tests positive and their close contacts will no longer be legally required to self-isolate. Instead, anyone who tests positive is advised to isolate for five days, avoid contact with vulnerable people and to return to their normal routine after two negative lateral flow tests and a normal temperature reading.
- Routine contact tracing will end and fully vaccinated close contacts and those under 18 will no longer be asked to test daily for seven days.
- Those who are unvaccinated and who come into contact with a positive Covid case will no longer be required to self-isolate.
- Workers will no longer be under a legal duty to inform employers if they are required to self-isolate.
- Government self-isolation support payments will come to an end.
- From 24 March 2022: Covid provisions for Statutory Sick Pay (SSP) will end. Workers who are absent and ill with Covid will be subject to the normal conditions of entitlement. In particular, this means that SSP will only be payable from the fourth day of illness (rather than the first day, under the pandemic rules).
- From 1 April 2022: Free Covid tests for the general public will no longer be available. Covid tests will be made available to be purchased privately. Tests will continue to be available for certain at-risk groups and social care staff, where they are displaying symptoms.
- The Government will remove the health and safety requirement for every employer to explicitly consider Covid in their risk assessments, with businesses becoming individually responsible for implementing their own appropriate measures.
- The Government will replace the existing set of ‘Working Safely’ guidance with new public health guidance and will consult with businesses and employers on this.
- The current guidance on voluntary Covid status certification will be removed and venues will no longer be asked to use the NHS Covid Pass.
(b) A snapshot of the key changes for employers in Scotland:
On 22 February 2022 the First Minister announced changes to Scotland's Strategic Framework. Although all Covid legal restrictions are expected to be removed in Scotland they will be replaced with “guidance and good practice”.
- From 28 February 2022: the Covid Certification Scheme in Scotland will come to an end, which will have an impact on nightclubs, conference venues and large events such as football games.
- The Scottish Government is reverting to advice to test at least twice a week and, in particular, if people are going to a crowded place or mixing with someone who is clinically vulnerable.
- From 21 March 2022: all Covid legal restrictions will be lifted in Scotland (this is being described as an indicative date and subject to progress with the pandemic). This includes the wearing of face masks in enclosed spaces and public transport. It will be replaced by guidance. The First Minister explained “we will continue to strongly recommend the wearing of face coverings in shops and other indoor public places, and on public transport.”
- The legal duty placed on businesses, service providers and places of worship to have regard to guidance on Covid and to take reasonably practicable measures set out in the guidance will also be lifted.
- People will continue to be asked to self-isolate in Scotland for 7 days if they test positive. The self-isolation rules in Scotland were introduced through guidance (whereas in England the rules were implemented via legislation) and the guidance remains unchanged.
- Lateral flow and PCR testing will remain free of charge pending the publication in March of a managed transition plan which will set out the future for Scotland’s Test and Protect programme.
- The Strategic Framework refers to a number of adaptations employers should consider in this next phase and emphasises the need to take “ account of their own risk assessments, which they should refresh regularly.” The adaptations include: increased hygiene, adjusting premises (such as improved ventilation) and adjusting behaviours (including increased levels of hybrid working). Further details are discussed at p.42-46.
- Workplace Guidance has been produced for people who are on the Highest Risk List (previously the shielding list). This emphasises the need for workplace risk assessments which should consider risks from Covid.
- Employers in Scotland are also being asked to consider the voluntary initiative, the Distance Aware scheme. This is aimed at anyone who feels anxious about proximity to others. They can wear a lanyard or badge to signal that they would like extra space in public places.
- We expect that the Scottish Government will update the current workplace guidance Coronavirus (COVID-19): safer businesses and workplaces.
(c) Legal obligations on employers
With the end of self-isolation requirements from Thursday 24 February 2022, potentially anyone who has contracted Covid will be free to mingle unrestricted in a way not seen for nearly two years; in a business context, the onus will be on employers to assess and manage the impact of this on its workforce and enforce their own internal policies.
Unsurprisingly, the new position outlined above leaves a number of unanswered questions for employers. The Government has indicated that it will consult with businesses and employers on new public health guidance to be issued after 1 April 2022, but businesses will need to start preparing for the changes immediately.
It is important to remember that the lifting of mandatory self-isolation (along with the removal of other Covid restrictions) does not change employers’ existing statutory duty to take all measures reasonably practicable to prevent employees and others from harm.
This duty is underpinned by a risk assessment with employers expected to consider workplace risks and take steps to mitigate identified risks accordingly. However, from 1 April 2022 employers in England will no longer be required to explicitly consider Covid within their risk assessment. The Strategic Framework in Scotland explains that “Employers have a legal duty to make workplaces safe and to conduct risk assessments; this is particularly important for those at higher risk.”
Notwithstanding the removal of this requirement, an employer’s common law duty of care to its workforce is the same as it has always been. The duty is to take the steps a reasonable employer would take to ensure employees are kept safe and therefore it is likely that many employers will still consider Covid within their risk assessments.
Employers also remain subject to a wide range of other labour laws relevant to managing Covid in the workplace, including obligations to avoid disability discrimination and not to subject employees who raise health and safety concerns to any detriment such as disciplinary proceedings or dismissal.
(d) What next?
Going forward businesses face a series of tricky questions about their policies for managing Covid in the workplace, such as:
- Should employers who have been asking staff to test before coming into work continue to do so and, if so, for how long? What will happen after 1 April 2022 when tests will no longer be free of charge? Do employers have a contractual right to require this of staff or does this amount to a reasonable management request?
- From 1 April 2022, are employers obliged to (or should they) pay for their staff to have access to tests privately? If so, for how long should employers continue to do this? An open-ended obligation will no doubt be very expensive, but this needs to be considered against an organisation’s sickness absence and pay policies.
- How are workers expected to distinguish between ordinary cold and Covid symptoms without access to a Covid test? Employers could ask workers to stay away from the workplace with any cold symptoms, but what if the employee says that they have not been in contact with any known cases and are well enough to work?
- Where staff are required by employers, rather than by law, to stay away from the workplace what should they be paid during absence (assuming that working from home is not possible)? It appears that from the end of March SSP will technically not be payable if a worker has Covid but is not symptomatic.
- How should employers manage staff who were previously categorised as clinically vulnerable or extremely clinically vulnerable? Can they require them to come back into workplaces and, if not, how should businesses manage those staff going forward?
- What other Covid prevention measures should employers continue, or start to impose – such as mask mandates and workplace social distancing? The promised new guidance may well assist employers here, but it seems it will not be provided until April 2022 at the earliest. It is however worth noting that employers are expected to continue to identify poorly ventilated spaces and take steps to improve fresh air flow.
- Where does all this leave employers that have imposed a “no jab no job” policy or a variation of it? Yesterday’s government paper has a clear focus on vaccination as fundamental to the new Covid risk strategy and we may see a trend towards greater imposition of vaccination mandates, despite the employment law and data privacy risks of doing so.
One of the key strategic determinations for businesses will be their pay policies. Staff who cannot work remotely and are not going to be paid for absences are unlikely to declare any illnesses. This could lead to clusters of workplace infections, even worse staff absences than experienced at times during the height of the pandemic, staff uncertainty and a raft of other employee relations issues and legal risks.
The specific answers to these questions will in many cases depend on individual businesses’ approaches to risk managing their workforce so far. But these issues should all be urgently addressed by employers so that they are clear on expectations of their staff in the coming weeks and months as employers adapt to (another) new normal.
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