Living with Covid – What employers need to consider

Living with Covid – What do employers need to consider?

Whilst the new guidance is a positive sign of a return to pre-covid times, it does create several points to be considered by employers including:

  1. Absences and pay issues

What will you do if an employee tests positive for Covid?  Will you want staff to stay at home if they test positive? If so what will you pay them?

If an employee tests positive for Covid and can work from home that should be fairly straight forward to deal with.  As will the situation where an employee is too unwell to work.  However, employees may test positive for Covid but still be well enough to work and want to continue working in the workplace (where they can’t work from home). As an employer, you will no longer have a legal right to ask them to stay away from the business and the employee is likely to have a right to attend the workplace (where they are willing and able to work). Therefore, if the organisation asks them to stay away and not work, you will need to think carefully about what you will pay employees to minimise the risk of claims.

In addition, the statutory sick pay (SSP) rules are reverting back to pre-covid rules and so employees will only be entitled to SSP from day 4 of any absence.  Therefore, if an employee only receives SSP for Covid related absences this may encourage them not to report Covid. In light of this it will be important to set out clear rules around Covid absence and sick pay.

Until the 1st April 2022 specific guidance remains in place that any person who tests positive for Covid should stay home for at least 5 days (and until they have two negative lateral flow tests 24 hours apart). Employers also have general health and safety obligations (see below) that they will need to consider. As such, it is advisable to keep current positive cases of Covid out of the workplace in line with the current guidance until we know more about what the changes will be in the guidance due to be published on 1st April 2022.

  1. Health and Safety duties

Employers will need to continue to balance ‘the right to work’ with the organisations legal obligations to protect the health and safety of employees and people who come into contact with employees, such as customers and clients. As an employer you will therefore need to decide how to balance these obligations and communicate this clearly to staff.

You are also likely to face ongoing concerns from vulnerable members of staff who remain concerned about contracting Covid-19 or from staff members who have vulnerable family members. These concerns will continue to need to be considered.

From 1 April 2022 the requirement for employers to specifically consider Covid-19 in their health and safety risk assessments will be removed. The purpose of this it to allow businesses to take responsibility for implementing their own safety measures that are appropriate for their organisation. However, employers will still have the usual health and safety at work duties, including the duty to ensure so far as is reasonably practicable, the health, safety and welfare at work of its employees (and failure to comply with this is a criminal offence). As such, it is likely that many employers will continue with some of the current mitigation practices they have in place in respect of Covid for the next few months at least but should keep these arrangements under regular review.

  1. Testing

Access to universal free testing ends on 1 April 2022 and free tests will only be available in limited circumstances.  Therefore, you will need to ensure that your workforce is clear on testing requirements, responsibilities and who is responsible for the cost. 

Employers will need to be clear on whether they are mandating testing as a requirement for coming into the workplace or not. Employers that want to mandate testing will need to pay for the costs of doing so from the 1st April 2022 otherwise employees may not comply. If employers do pay for testing, there may be tax implications for doing so which will need to be considered further.

In addition, if an employer intends to mandate testing and/or will collect test results (and/or collect vaccination status data), the employer will need to consider the implications under the UK GDPR and ensure that privacy notices and data protection policies are updated accordingly.

  1. Notification regarding Covid

Another challenge will be rules around whether staff should notify the organisation if they have Covid. From 25 February 2022, employees will not be legally required to notify their employer. Therefore, your policies will need to be clear on the employer’s position and rules on this.

  1. Breaches of internal procedures

Other policies such as disciplinary policies are also likely to need updating to make clear what happens if an employee breaches the internal rules relating to covid.

How we can help

Whilst this step towards normality is certainly welcome in many ways, it undoubtedly leaves a lot of issues for employers to consider and adapt to quickly. One way of approaching the guidance and the steps outlined above is to send out staff surveys to obtain your workforces opinions on some of these matters which are now optional. If more staff are on board with the changes you intend to make, the better this will be for the organisation.

Any changes you do make we strongly recommend you set out in writing, update your policies and procedures accordingly and communicate changes to staff clearly. This will ensure employees are clear on the expectations you have and should help to minimise any problems occurring when implementing any changes.

If you would like any employment advice on the points outlined above, please do get in touch with us today and we would be delighted to assist you in planning your next steps and/or documenting these clearly. 

Dates to watch out for

21 February 2022

Removal of guidance for staff and students in education/childcare settings to undertake twice weekly asymptomatic testing.

24 February 2022

The legal requirement to self-isolate in England when an individual tested positive for covid ended. However, for now (and until 1 April 2022), anyone who tests positive for covid is advised to stay at home and avoid contact with people for at least 5 days (and until they have two negative lateral flow tests 24 hours apart).

Removal of legal requirement on:

  • workers to tell employers when they are required to self-isolate; and
  • on employer not to allow worker to leave self-isolation.

End of the requirements to:

  • test daily for 7 days after contact with a covid case (for fully vaccinated individuals and those under 18); and 
  • to self-isolate (for unvaccinated individuals).

End of self-isolation support payments.

17 March 2022

The Statutory Sick Pay Rebate Scheme closed meaning that employers will no longer be able to claim back SSP for their employee’s coronavirus-related absences.

24 March 2022

Statutory Sick Pay (SSP) rules will revert back and SSP will only be payable from day 4 of a period of absence.

1 April 2022

Individuals who test positive – It will be up to individuals to exercise personal responsibility as to whether they should isolate or not.

Updated guidance will be introduced on the ongoing steps people with Covid should take.

Free Covid tests will only be available in limited circumstances, otherwise Covid tests will need to be paid for.

Removal of the requirement for employers to specifically consider Covid-19 in their health and safety risk assessments.

 

 

 

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