COVID-19 Guidance for Employers: 3 Steps You Should Take

Now that the rules for dealing with COVID-19 are far less strict than we have been used to in the last two years, it can be unclear what is expected in the workplace. We outline some suggested guidance for employers in relation to managing COVID-19.

What is the current situation with COVID-19 and the workplace?

On 21 February 2022, the government announced its strategy for living with COVID-19 in England. This starts the move towards treating the virus as endemic, meaning it will be treated in the same way as flu and other such viruses.

People are likely to struggle to adjust their mindset to this, particularly those who were previously classed as vulnerable or clinically extremely vulnerable.

Essentially, for those individuals who are more vulnerable, the onus for protecting their health has shifted from those who may be carrying the virus, to those individuals who are vulnerable i.e. they must protect themselves as they see fit.

The legal requirement to self-isolate following a positive COVID-19 test ended on 24 February 2022. It is therefore now up to employers to decide whether to require employees to stay away from the workplace if they test positive for COVID-19.

It is worth noting that there are still stricter requirements in relation to those working in social care and other similar settings. The Department of Health and Social Care published new guidance, a supplement to the infection and control resource for adult social care, on how to reduce the spread of COVID-19 in adult social care settings. The guidance applies from 04 April 2022 and a summary of the key changes can be found here: https://www.gov.uk/government/publications/infection-prevention-and-control-in-adult-social-care-covid-19-supplement/summary-of-changes-to-covid-19-guidance-for-adult-social-care-providers

All employers have a legal responsibility for protecting the health, safety and welfare of staff (which existed before COVID-19). We are recommending that employers take the following steps:

1. Review your risk assessments

One paramount principle which employers must adhere to is protecting the health, safety and welfare of staff. Employers should consider what risk COVID-19 now poses within the workplace, with particular consideration to any employees who were previously classified as “clinically extremely vulnerable” and/or may have a disability.

This needs to be kept under review and updated to reflect the change in guidance and clinical position.

From today, employers are no longer required to carry out COVID-19 specific risk assessments i.e. the risk should be included in the same way as any other virus or infection.

2. Consider the impact on disabled employees

In light of the risk assessment, employers should consider what adjustments may be appropriate to protect those who may have a disability which could mean they are more susceptible to infections. This is something which should be considered in order to comply with the employer’s duty make reasonable adjustments in certain circumstances.

3. Put in place a policy for testing and notification of results (if appropriate)

In light of the risk assessment, if an employer considers that it is appropriate to require employees who test positive for COVID-19 to stay away from the workplace then they should put in place and communicate a policy which sets this requirement out and the rationale for it.

If an employer requires an employee who tests positive (regardless of whether they are symptomatic or not) to remain away from the workplace and the employer either pays them nothing, or pay them only SSP, they will be exposed to a significant risk of a breach of contract claim on the basis of unlawful deductions from wages. This could potentially also lead the employee to resign and claim constructive unfair dismissal. In addition, if an employee receives no pay, or only SSP, they will be financially impacted by the request to stay away from work and this may result in employees not being forthcoming if they receive a positive test result.

Further, since testing via Lateral Flow Tests will no longer be free to all (save for those working in social care and similar settings and other specific groups) from today employers will need to fund the costs of requiring employees to continue to test.

We are therefore recommending at this stage of the pandemic that if employers choose to have a policy in place which requires employees to remain away from the workplace if they test positive for COVID-19 that they pay them full pay for this period of absence. This should apply to both those who are symptomatic and those who are asymptomatic to ensure consistency.

We would suggest requiring evidence of a positive test result in order to qualify for full pay.

Refusal to attend work

What is an employee entitled to be paid when they refuse to attend work due to fears about COVID-19 and are unable to work from home?

If the absence is unauthorised then the employee would likely not be entitled to pay as they are not willing to attend work. However, before withholding pay the employer should consider the context of the refusal to attend work i.e. whether the employee is refusing to attend work for health and safety reasons, or whether there would be any risk of discrimination by withholding pay.

Potential Claims

  • Health and safety: Previously, the guidance supported the position that the virus posed a serious and imminent danger. If an employee took steps to protect themselves or other persons from the danger and an employer dismissed them or subjected them to a detriment because of this then the employer could be at risk of a claim under s44 or s100 of the Employment Rights Act 1996. However, currently it is unlikely the government’s assessment of risk (and general information available to the public) would support any argument that the virus poses a serious and imminent danger. Therefore, the risk of such a claim has reduced.
  • Whistleblowing: Similar to the above but this is likely to arise in the context of compliance with a legal obligation e.g. carrying out and following risk assessments.
  • Disability discrimination: Those who are vulnerable as a result of a long-term physical and/or mental health condition may well be classed as ‘disabled’ for the purposes of the Equality Act 2010. As stated above, a duty to make reasonable adjustments would arise and any detrimental treatment which a disabled employee is subjected to relating to their disability (intentionally or otherwise) may result in a disability discrimination related claim.

Tribunals will consider the information and guidance that was available to the employer at the relevant time in assessing whether their decision to take steps was justified.

If you have any questions on this subject then please contact our Employment team using the form below.

Kitsons Solicitors - Rosie Evans

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    Kitsons Solicitors - Rosie Evans

    Rosie EvansAssociate

    Rosie is an Associate in our Employment team

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