Covid: Where are we now?

The government announced last month that it was bringing the autumn vaccine programmes forward by a month as a “precautionary measure” following the identification of new covid variant coupled with evidence of community transmission. However, the booster vaccine is only available to those at high risk of serious illness and not the general population. This highlights the change in approach from minimising the spread of covid through lockdowns to maximising protection for the vulnerable by vaccination. We explore what this means for employers and sickness absence.

Testing for covid

Gone are the days when boxes of lateral flow tests cluttered kitchens across the country. Outside the era of free testing, people are simply less likely to know whether or not they have covid. In terms of rules or guidance, there is no current requirement for anyone with covid symptoms to take a covid test. Unless employees (or their employers) are willing to pay for a test, it will be unlikely that they can evidence that their illness is indeed a covid infection.

Tests are available for free only for those who are eligible for covid treatments, on the request of a GP or those who care for high-risk patients or care home residents and have covid symptoms. Otherwise, tests are available to purchase for £2 for a single test from pharmacies. Also, even if an individual takes a test, there is no longer a legal requirement for an employee to inform their employer if they do test positive for covid anymore (although some employers may have a stricter company policy on notification requirements).

Can employers justify a more stringent approach than the current guidance, and ask employees to take covid tests if they have symptoms or to stay away from the workplace pending test results? Legally, unless in health and social care, most employers would find this approach difficult to justify. Whilst there has been a previous Employment Tribunal decision finding it was acceptable for an employer to enforce health and safety measures which were more stringent than government guidance at the time, that case still had the context of being set in the pandemic, was not related to testing and is only a Tribunal decision.

Current isolation guidance

Gone too are the days of mandatory self-isolation: there is currently no requirement to isolate either with a positive covid test result or just covid symptoms. The current NHS advice is that anyone with covid symptoms and either a high temperature or not feeling well enough to attend work or their normal activities should ‘try to stay at home and avoid contact with other people’. However, once a high temperature disappears and you feel well enough, the NHS advises that you can return to your normal activities.

However, if an individual does decide to take a test and receives a positive result, the guidance is to try to stay at home and avoid contact with other people for 3 days (if under 18) or 5 days (if over 18) calculated from the day after the test was taken. The guidance also advises avoiding meeting people who are more likely to get seriously ill from viruses, such as people with a weakened immune system, for 10 days after the day the test was taken.

Nevertheless, many employees may continue to be concerned about catching covid in the workplace if cases continue to grow. For many people, it is difficult to adopt a different mindset to infection when only a short time ago, lockdowns and isolation were legally required and seen as necessary to protect loved ones who were shielding having been classed as clinically extremely vulnerable. It is easy to foresee situations where a vulnerable employee may feel extremely uncomfortable working alongside someone who has recently tested positive for covid or had symptoms. In this situation, an employer should be mindful of of helping employees comply with the isolation guidance above if necessary, the duty to make reasonable adjustments and be sensitive to individual needs where possible.

However, the successful vaccination program and reduction in deaths saw the guidance change because the threat posed by covid has reduced. In most situations, an employee who is not prepared to remain at work due to covid risks would therefore struggle to show they have a “reasonable belief” that they are “in serious and imminent danger” which they cannot avert (the test for an employee’s right not to suffer a detriment or be dismissed for leaving or refusing to return to work). This is particularly the case where an employer can show that it has taken steps to put in place suitable health and safety measures.

Considerations for employers

Whilst the legal position and guidance now treats covid as like any other illness such as flu, many people continue to have concerns about infection given the possibility of debilitating long covid symptoms. 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. This involves carrying out a suitable risk assessment to identify risks (including for different groups of workers who may require extra measures) and implementing any measures to minimise the risks. There is no longer a requirement to expressly consider covid in a risk assessment, but employers may wish to do so anyway. The government guidance on reducing the spread of respiratory infections in the workplace continues to apply.

Employers could also consider the following:

• Enforce and raise awareness of good hygiene practices in the workplace.
• Remind staff of the sickness policy and encourage working from home when unwell.
• Offer voluntary measures such as providing free face masks if workplaces require close contact with colleagues or members of the public.
• Offer free lateral flow tests to allow staff to identify a covid infection (if this is important for a sickness policy or to support working from home). Some employers offer enhanced sick pay to those with a positive lateral flow test to encourage staff to isolate.
• With the booster program focusing on the vulnerable, some employers may also want to offer free covid vaccinations once available to purchase privately, in the same way many employers may fund flu jabs. Reports suggest vaccines may be available in the US as early as this Autumn but there is no word yet on the UK position.