Living with Covid: don’t drop your guard

The Living with Covid Strategy published last month gave employers more discretion over how they manage the risks of Covid in their workplace.

From 24 March, the special rules on statutory sick pay relating to Covid are set to be withdrawn. SSP will only be payable from day 4 of a period of incapacity. It will no longer be payable to employees who test positive but are not incapacitated, nor to any isolating close contacts.

Until 1 April, employers must continue to follow the sector specific workplace safety guidance. This will be replaced with new public health guidance with effect from 1 April, but the new guidance is yet to be published. As we explain in more detail here, however, employers must continue to meet their statutory duties, including that of providing a safe place of work. What employers need to do in order to satisfy this obligation will vary depending upon the working environment. Complying with the guidance is likely to be the minimum needed to comply with the law.

Adjusting to the new normal

News stories emerging over the past few weeks have illustrated how difficult it can be for employers to make judgment calls about what “Living with Covid” means for their organisation.

There was a swift retraction by retailer Wilko of its internal memo in which it advised staff that, if they felt well enough, they could continue to work in store despite having the virus. Such a policy may no longer be unlawful, but until 1 April it remains a breach of government guidance. The strong reaction against this approach demonstrated that it was also out of step with society’s expectations around risk and what is deemed to be reasonable at this point in time.

On the other hand, there have been reports that care home staff in Somerset who have Covid are being permitted to continue working. This appears to be the outcome of an assessment that the risk posed to vulnerable residents by understaffing is greater than that posed by Covid. Employers in other sectors need to careful about the conclusions they draw from this, though. The residents’ urgent and ongoing need for care, and also the use of PPE in this setting, would be factors that are not commonly weighed into the balance in other working environments.

Assessing risks

And a balancing exercise it remains. The best way for employers to weigh up the risks in their workplace is by the use of a risk assessment (which we discuss here). Particular care must still be taken to protect those with specific vulnerabilities. The roll out of the Spring booster programme is a timely reminder that certain groups continue to be at heightened risk from infection.

The rules around risk assessments are also set to change on 1 April and this could leave employers in an uncertain position. Frances O’Grady, General Secretary of the TUC, has recently written to the Business Secretary, Kwasi Kwarteng, raising concerns about the upcoming removal of the obligation on employers to expressly consider Covid in their risk assessments. The TUC’s view is that this change sends mixed messages to employers who remain bound by their statutory duties which require suitable and sufficient risk assessments to identify workplace risks. Watch this space as to whether the new guidance will provide clarity on this point.

Don’t drop your guard

Although spring may be in the air, so too is Covid. Whilst the risk of serious illness and death has decreased significantly, the lessons learnt over the past 2 years about managing Covid-related risks remain relevant.

Employers should continue to ensure good infection control, by ventilation, cleaning and hand hygiene. Maintaining good hygiene control measures in the workplace has wider benefits, as recent research on the dramatic reduction in stomach bugs shows, and can therefore help more generally with maintaining staff health and attendance levels.

From 1 April, free Covid testing for everybody will end, and employers will need to decide if they are going to fund any kind of workforce testing scheme, for example as a temporary measure. Employers will also need to decide when contractual sick pay will be payable, and this will be a key signal to staff about when they should stay away from the workplace. Clear policies and good communication remain vital in ensuring that staff understand what is expected.

Further information about these tricky decisions can be found in our FAQs.