Plan B – implications for employers

On Wednesday 8 December, the Prime Minister announced that Plan B measures would come into force in England. This means, in summary, that employees should work from home if they can, face masks will become compulsory in more settings, and nightclubs and other large venues will need to restrict entrance to those showing valid Covid passes (or other evidence of a negative test).

The current rule requiring fully vaccinated contacts of someone with the Omicron to self-isolate will, however, be relaxed in favour of daily testing - although a date for this change is yet to be announced.

Do office workers now need to work from home?

Anyone who can work from home is being advised to do so from Monday 13 December. The Cabinet Office guidance says that anyone who cannot work from home should continue to go into work - for example, to access equipment necessary for their role or where their role must be completed in person. The guidance also acknowledges that home working may be inappropriate for mental or physical health reasons, or for those with a particularly challenging home working environment.

This is guidance rather than law so nobody will be committing an offence by continuing to work from the office if they could have worked from home. Employers will, however, need to consider their underlying health and safety obligations (for more guidance on these, see our FAQs on managing a safe return to work). They will also need to decide what, if any, gateways to put in place. For example, will employees be asked to declare if or why they need to be in the office, or will it be left to employee discretion.

Note that the new guidance applies to England only – the position is different in Wales, Northern Ireland and Scotland. In Wales, for example, working from home is already encouraged.

Does this mean the office Christmas party must be cancelled?

In answer to a question at the press conference, the Prime Minister said that Christmas parties can go ahead. This is legally correct – there are no restrictions on social events. If the government had intended to implement restrictions on socialising then it could have re-introduced the rules prohibiting gatherings, but it has not done so.

Ireland recently brought in restrictions in a similar way – with working from home being introduced without restrictions on social events (although social events in Ireland are now also restricted).

We would expect some office Christmas parties to be cancelled, despite the Prime Minister’s comments, because fewer employees will be travelling into work, there will be underlying health and safety concerns and many employees will be reluctant to attend. If employers are going ahead with holding office parties, they should carry out a risk assessment and consider various mitigating steps such as ventilation, hand sanitisation and asking employees to take lateral flow tests before attending.

Are there new rules for offices if they stay open?

The Working Safely guidance on how employers can reduce the risks in their workplace has not yet been updated and there is currently no new guidance from the Health and Safety Executive.

There has been no suggestion that there will be tighter workplace safety rules for offices. It is possible that the new guidance will include a greater emphasis on employees taking lateral flow tests before coming to work. The Cabinet Office guidance says “if you need to continue to go into work, consider taking lateral flow tests regularly to manage your own risk and the risk to others”. There is no indication, however, that social distancing guidelines or other more stringent measures will be brought back in. With the increased threat posed by the Omicron variant, employers should nonetheless continue to update their risk assessments and consider if any further steps are needed.

Which settings must use NHS Covid passes?

From Wednesday 15 December, subject to parliamentary approval, the NHS Covid Pass on the NHS App will become mandatory for entry into nightclubs and large venues – including unseated indoor events with 500 or more attendees, unseated outdoor events with 4,000 or more attendees and any event with 10,000 or more attendees. In a concession to the affected industries, alternative proof (such as an email or text) of a negative lateral flow test will also be accepted. The requirements are likely to be apply only to customers, rather than staff.

Note that these rules will not apply to other settings (such as large offices) even if they have a capacity of over 500 people.

What are the planned new self-isolation requirements?

Under the current law, a close contact of someone with a suspected or confirmed case of the Omicron variant is required to self-isolate regardless of vaccination status. The government has indicated that it will replace self-isolation with daily testing for this group. At the moment, the current self-isolation rules continue to apply and a date for the new rules coming into force has not yet been announced. The planned change is welcome news for many employers who feared a potential return to last summer’s “pingdemic” when large numbers of staff were absent through self-isolation requirements.

The scope of the new rules, however, is unclear. It is uncertain, for example, if daily testing could become an option for unvaccinated people, who are currently required to self-isolate if they are close contacts of someone who tests positive for any type of Covid-19. It is also unclear if daily testing will become a requirement for all vaccinated close contacts, regardless of the Covid strain.

Is compulsory vaccination against Covid-19 looking more likely?

There are several forces in play here. The recent US laws requiring workforce vaccination have caused many US-headquartered employers to look at mandating the vaccine for employees in other countries. The position is also hardening in continental Europe, with Germany, Italy and Austria, for example, introducing requirements for employees to show Covid passes. At the press conference on 8 December, the UK Prime Minister hinted that there may come a point when we need to have national conversation about compulsory vaccination (although the health secretary subsequently dismissed the idea as ethically wrong). These winds of change come at a time when the science is unclear on the extent to which double vaccinated people are vulnerable to catching the Omicron variant and likely to pass it on to others. There is also the question about whether people should be regarded as fully vaccinated until they have received a booster vaccine (see below). For employers looking to introduce compulsory vaccination, it remains sensible and legally safer to consider testing as an alternative.

Does fully vaccinated mean double-jabbed or does it now require people to take the booster jab?

The very early stage results from research indicate that having a booster vaccination will decrease the chances of both infection and severity of illness from the Omicron variant. For this reason, it is likely that the definition of “fully vaccinated” for the NHS Covid pass and self-isolation requirements will change to require a booster dose once every adult has been offered a booster, currently planned to be by the end of January 2022. This will also impact employers considering compulsory vaccination policies. At the moment, however, the definition of fully vaccinated remains unchanged.

Next steps

We await further guidance from the government but, in the meantime, employers need to consider their position on the new “work from home” guidance before it comes into effect on Monday 13 December. We will be updating our various FAQs and Covid materials as further guidance is published.