Living with Covid: what this means for the workplace

The government has published its plan for Living with Covid including the timetable for removing Covid measures in England.

From 24 February (this Thursday) the legal requirement to self-isolate following a positive test will be replaced with guidance to stay at home. From the same date, contact tracing will end, and self-isolation support payments for those on a low income will stop. From 24 March, the special rules about statutory sick pay relating to Covid will be removed.

From 1 April, free Covid testing for all will end. Employers will no longer have to explicitly consider Covid in their health and safety risk assessments and the sector-specific working safely during coronavirus guidelines will be replaced with new public health guidance.

This insight looks at the implications for employers, but it is important to emphasise that in practice little will change immediately so employers have time to plan for - and consult employees about - any new rules.

Our FAQs on workplace policies and decisions for “Living with Covid” consider in detail a number of difficult questions for employers which remain on a range of employment law issues

Little change in the immediate term as positive cases should still stay at home

The legal requirement to self-isolate will be removed from 24 February but the guidance will advise anyone who tests positive to stay at home and avoid contact with other people for at least 5 full days and then to continue to do so until they have received two negative test results on consecutive days. This advice will remain in place until 1 April.

Responsibility on employers to keep positive cases at home

The sector specific guidance on working safely during coronavirus is likely to continue to advise employers to enable employees who test positive to stay at home. Employers also have general health and safety duties to consider (see our FAQs on managing safe work throughout the pandemic). Taking an approach which is at odds with the guidance would increase the chance of negligence claims and make it difficult to discipline employees who refuse to come to work. It is therefore advisable to continue to keep positive cases out of the workplace until the guidance changes on 1 April.

Employers will need to ask (and rely on) employees to tell them if they test positive; the legal obligation on employees to tell their employer when they are required to self-isolate will end on 24 February.

Pay and sick pay for positive cases

If the employee is well enough to work, despite testing positive, they can be asked to work from home and paid as normal if their role allows. Until 24 March, statutory sick pay will continue to be payable from day 1 for employees who test positive for Covid but who cannot work from home.

Pay and sick pay for unvaccinated close contacts of positive cases

From 24 February, unvaccinated close contacts of a positive case will no longer be required to test or to self-isolate and will instead be asked to take extra care in following general guidance for the public on safer behaviours. In terms of sick pay, with the scrapping of test and trace, SSP is only available for isolating close contacts of positive cases where the infected contact is in the same household as the employee.  From 24 March, SSP will no longer be available for any close contacts. If an unvaccinated close contact employee can work from home, it will continue to be sensible to ask them to do so for at least 5 days. Where an unvaccinated close contact cannot work from home it will be difficult to prevent them from attending work without their agreement and that would require salary to be paid.

The medium term - more responsibility shifts to employers from April

Employees who are too sick to work

In a sense, this is the easiest scenario to plan for because the rules will simply revert to the ones in place before the pandemic. If an employee becomes too unwell to work, whether for Covid or any other reason, they would need to follow absence reporting procedures and be entitled to sick pay in the usual way. From 24 March, SSP will only be payable 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. Employers can encourage employees to stay at home when they are too ill to work by maintaining company sick pay.

Employees with mild symptoms

The more difficult issue is likely to concern employees with mild symptoms, who feel “under the weather” but who, before the pandemic, would have come to work as usual. Without taking a test, these employees will not know if they have Covid or a common cold. The government guidance may assume that sickness is a clear cut issue, so may not provide guidance on this point.

Most employers will no longer be explicitly required to consider Covid in their risk assessment, but employees may continue to see a distinction between Covid and other viruses. Covid is not yet like flu: it is both more contagious and more dangerous for some. So, in practice, there are likely to be questions about what employees with mild symptoms should do.

Some businesses may advise employees to work from home as a precautionary measure whenever they have any cold-like symptoms. Where working from home is not possible, some employers may pay for the employee to take a test when they have symptoms that could be Covid-related, and ask the employee to stay at home if they test positive for Covid or come to work if they do not and feel well enough to do so (see below for more information about paying for tests).

What happens in practice may partly depend on the employer’s approach to sick pay. SSP is payable (from day 4) when the employee is “incapable by reason of some specific disease … of doing work which he can reasonably be expected to do under that contract”. There’s very little guidance on what this means but it could potentially cover mild symptoms. In practice, employees often judge for themselves whether they are fit to work, with different employees taking different views. Company sick pay schemes also often talk in terms of the employee being sick, without spelling out any kind of threshold.

Screening for all positive cases and paying for tests

Some employers may wish to continue with workplace testing to screen for all positive cases, including asymptomatic cases. For example, some employers might continue to require a negative test before allowing employees to come into the workplace.

Employers that want to continue with workforce testing would need to pay for the costs of doing so once universal free testing ends on 1 April. Current indications are that tests will be around £20-25 per pack of 7. 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 are in place only until 5th April 2022. It remains to be seen if the government will extend these exemptions. (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.)

If asymptomatic Covid-positive employees cannot work from home then employers would also need to provide company sick pay during any period when employees are required to stay away from work. SSP is not payable after 24 March if the employee feels perfectly well.

Whether or not employers go down this route will be a matter for the employer’s particular work setting, workforce and risk assessment. The government appears to be targeting testing only on certain groups (reports indicate that this is likely to be those who are immuno-compromised and those working in social care). This indicates that blanket screening of staff would not be the normal or expected scenario, at least in the long run.

It remains to be seen what common practice emerges. The period up to 1 April provides employers with an opportunity to consider what they and their staff might feel comfortable with. In a population increasingly weary of the ramifications of Covid, staff may be reluctant to participate in ongoing testing. On the other hand, staff may positively welcome a commitment to employer-funded testing as a short-term confidence-boosting measure.

Mitigations for vulnerable employees and employees who live with vulnerable people

Whatever approach the employer takes, the risk of contact with Covid-positive colleagues and customers is going to increase.

Clinically vulnerable employees may be particularly anxious and employers will need to consider how to meet their duty of care towards them. The government may provide updated guidance, although many employers will be already familiar with the range of options available, for example allowing vulnerable employees to work in the safest possible roles.

Some employees may claim that they are entitled to stay away from the workplace citing “serious and imminent danger” especially if they are extremely clinically vulnerable, are in constant contact with the public or there is a local outbreak (see our FAQs on staffing decisions throughout the pandemic). This argument would need to be weighed against the fact that the population is now better protected, the fact that the current dominant Covid variant is milder, and the mitigating measures that the employer puts in place.

Employers do not owe duty of care to people who live with their employees, but employees who live with a very vulnerable person will also be anxious and may even argue they cannot come into work because of serious and imminent danger to that person (see our FAQs on staffing decisions throughout the pandemic). In some cases, therefore, employers may want to extend any special mitigating measures to these employees.

When dealing with questions of clinical vulnerability, it can be helpful to seek input from Occupational Health. Employers should also expect an increase in flexible working requests driven by clinical vulnerability and may want to consider granting requests on a temporary, rather than permanent basis.

Longer term shifts and new perceptions?

As the mindset shifts from “pandemic” to “endemic”, what impact will this have on the workplace in the longer term?

Sickness absence

The workplace has always been a hotbed for the circulation of viruses. But, prior to the pandemic the question of “sickness” was generally determined by the impact on the sick individual. If an employee felt too unwell to work, they would not have to do so and may be entitled to sick pay. Now the focus has shifted beyond the sick employee to include the other people they interact with, in the workplace or in wider society.

We may see sickness policies being updated to include expectations around periods of the employee’s infectivity with any illness, work location while potentially infectious, or mitigating practices when returning to the office.

We may also end up changing our perceptions about what level of sickness absence is deemed acceptable. Should this go up, on the basis that battling into work with a streaming cold is no longer commendable? Should it go down, as many people are more easily able to work from home when sick? Or should it stay the same but with a shift in focus to encourage people to take time off sick rather than work from home? This has consequences for company sick pay schemes, attendance policies and rewards for attendance.

Infection controls as standard?

Will we see a continuation of infection control measures such as hand gel, screens, and masks and, as a result, a more sterile and controlled working environment? Employers may take different approaches depending upon the risks posed in their workplace or possibly even upon the time of year.

Vaccination

Another question is what the relevance of vaccination will be going forward. The scrapping of mandatory vaccination in the health and social care sector may have made the implementation of mandatory vaccination policies for other employers more difficult. Yet this comes at a time when employers are showing increasing willingness to draw a distinction between the vaccinated and unvaccinated through policies such as company sick pay for close contacts of positive cases. Those specific policies will become redundant when the obligation to self-isolate falls away, but it is conceivable that vaccination may be factored into other policies in future.

Vulnerability

The process of shielding, and related categories of clinical vulnerability, brought into public consciousness the concept of a spectrum of vulnerability to infection. Will “vulnerability” become something that is factored into workplace risk assessments as a matter of course? With the scientific evidence now confirming that unvaccinated individuals are at greater risk of becoming seriously ill with Covid, should employers also now regard unvaccinated individuals as if they were vulnerable?

Conclusion

The Living with Covid Strategy raises important questions for how employers should best manage the risks of Covid going forward. There are not always clear answers and, given that this strategy applies only in England, many employers (particularly multinational ones) are likely to have manage the complexities of different systems for some time. But it is clear that this process of deregulation marks a step change in how we will need to live alongside the disease and adjust the ways we live, and work, accordingly.

Our FAQs on workplace policies and decisions for “Living with Covid” consider in detail a number of difficult questions for employers which remain on a range of employment law issues