The end of Covid-19 rules in England - Your questions answered
Posted on 24th February 2022 at 11:11
It’s another big change for employers as Covid-19 restrictions end across England. But there is still a lot of confusion about what this might mean in practice, what risks employers still face, and what, exactly, employers can actually do if employees contract Covid-19 in future.
As with everything this pandemic has thrown at us, interpretation of the legal implications of these changes has provoked a lot of debate amongst employment lawyers. Which means uncertainty for employers and their HR advisors, and the potential for a lot of difficult conversations with people who don’t like the way the changes are implemented within their workplaces.
So I thought this would be a good opportunity to set out what has changed, what employers should do about the changes, and what potential pitfalls you should be mindful of, based on some of the questions I have been asked since the changes were announced.
So, what’s changed with self-isolation?
The Government scrapped all the legal rules about self-isolation in England, and replaced them with “advice” with effect from Thursday 24th February 2022.
Why do changes to self-isolation rules matter for my business?
It means that people who have coughs, colds or other symptoms similar to those of Covid-19 are now advised to self-isolate for 5 days, but they don’t legally have to self-isolate if they choose not to. And from 1st April, the advice to self-isolate is due to be lifted altogether.
And it will concern some organisations that employees no longer have a legal obligation to tell their employer if they have Covid-19, although government advice is that they should.
Furthermore, no-one – vaccinated or unvaccinated – needs to to self-isolate after close contact with a confirmed case of Covid-19.
So there is no legal reason why people cannot come to work with Covid-19 symptoms. And potentially spread them around the workplace, just like coughs, colds and flu used to spread around workplaces pre-March 2020.
I don’t mind normal coughs and colds, but I do want to know if someone has Covid-19.
And here’s the next challenge. Free mass testing for Covid-19 is due to end on 1st April 2022. Indications are that there will be a charge of around £12 for a pack of 4 tests, and this is likely to be prohibitive for the low-paid (who are, of course, more likely to be employed in jobs that cannot be done from home).
Some employers may want to consider providing tests for their employees, and this could be right for your organisation, but it’s important to get your policy clear about this because testing for your whole workforce is likely to be expensive and unsustainable long-term.
If you’re thinking that you’ll require your employees to pay for their own tests as part of your policy, I would strongly suggest you don’t. I think this will be almost impossible to enforce, and is almost certain to lead to legal claims from your employees.
So we’ll just tell people to stay at home if they are ill. That’s OK isn’t it?
Yes, but SSP has now changed too, back to the way it used to work.
From Thursday 24th February – the same date as self-isolation laws ended – SSP is only payable from day 4 of absence. And the SSP rebate scheme which reimbursed smaller employers for Covid-related SSP payments, also ended on this date.
Remember that we have a cost-of-living crisis developing now as well. People who are only entitled to SSP may not be able to afford to take time off. If they aren’t forced by law to stay at home, or tell their employer they may have Covid-19, then they will come to work, especially if their symptoms are mild. The risk, of course, is that they could spread the virus to other people in the workplace.
For employees who can work from home, this isn’t going to be an issue. But for those who can only perform their job at work, I can see this becoming a potential nightmare for employers.
Not a nightmare for us - I’ll just send them home.
Well, you can do this, of course. But bear in mind that if you send home an employee who is ready, willing and able to work, this is classed as a medical suspension, which the law says has to be at full pay.
And that’s another cost for employers to carry.
Isn’t this whole approach a bit...risky?
The Government are keen for the country to learn to “live with Covid” and this means a return to “personal responsibility” for individuals, and businesses "making the right decisions for their organisations" about any precautions or measures that are appropriate. Just as used to happen pre-March 2020.
So the degree of risk really depends on the type of work you do, the space in which people work, the clients you serve, and the people you employ.
The Government wants employers to decide, based on their own risk assessment, what measures are right for their own organisation. Employers need to remember that they have a duty, under the Health and Safety at Work Act, to take reasonable steps to protect the health, safety and welfare of their employees and other people who may be affected by their business.
The Act requires employers to provide a safe system of work, a safe place in which to work, and to carry out relevant risk assessments.
Can you give some examples of the risks we should be thinking about?
They are mostly the ones you have been thinking about for the past 2 years. In practical terms you should consider things like:
Activities or situations that are likely to cause transmission of Covid-19, such as people having to work in close proximity, moving around buildings or travelling together.
The people who could be at risk, which might include those in specific job roles, or employees, customers and other visitors who might be particularly vulnerable to the effects of Covid-19, perhaps because of pregnancy or underlying health problems, or who live with someone who is vulnerable.
And once you have identified the risks, you need to think about the controls you could put in place to manage the risks.
What sort of controls?
Again, these are things we are now all familiar with. Controls might include hygiene measures such as regular cleaning, mask-wearing, good ventilation, and reducing numbers in the workplace by allowing people to work from home, which have all been recommended by medical experts in the past 2 years.
This all seems quite...woolly, doesn’t it?
It does, and I think there are risks for employers that haven’t been fully thought through by the Government. Which means they are likely to be argued over by lawyers for years to come.
In fact, the legal debates have started already, and I am expecting to see tribunals in 12-18 months wrestling over issues such as:
Can employers now end home-working for everyone and force all employees back to work?
Will employers be liable if someone suffering from Covid-19 attends work and infects other colleagues or clients with the virus?
If someone suffers long-term health problems as a result of contracting Covid-19 in the workplace, will an ill-health dismissal be possible?
If an employee refuses to attend work because they are worried about the risk of catching Covid-19, can they be dismissed?
If employers don’t want to fund tests, can they force employees to pay? And could an employee be dismissed for refusing to pay?
So, what should an employer do now?
First of all, remember the broader context we are all working in.
We have a recruitment crisis affecting most sectors. If you decide, for example, to insist all jobs must be done in the workplace, remember that a huge proportion of job-seekers are looking for flexible working arrangements such as hybrid working or fully remote working. Being very inflexible will seriously limit your potential recruitment opportunities in an already difficult market.
We have a cost of living crisis looming too. Your employees may not be able to afford the fuel to get to work, let alone time off work at SSP rates. Many companies are now looking at introducing Company Sick Pay, if only for a week or two, as a way of encouraging people to stay at home if they have Covid-19 symptoms. They figure the cost of a couple of weeks' sick pay is worth it if it prevents an outbreak across their workforce.
And while Covid-19 rates may be lower than they have been, the virus is still very much with us. Children still become ill and need their parents to take time off work to look after them. Elderly dependents remain vulnerable, albeit less so than in 2020. We aren't really back to normal yet.
Which means the best approach is to be pragmatic, flexible and considerate of each of your employees' personal situations. So I suggest the following:
Talk to your employees. All of them. Understand their feelings, concerns and fears about changes to the rules, and ask them for their thoughts on how you should respond to the changes outlined by the Government. Remember that some people will be very happy about the end of restrictions, some are dreading it, and many are fearful of some aspects of the changes. Everyone’s opinion matters.
Revisit your Covid-19 risk assessment in light of the changes to Government policy explained above. While you will no longer need a specific risk assessment for Covid-19 after 1st April, it’s a good starting point to remind you of all the risks identified and controls used to date.
Take advice from your Health and Safety specialist on the controls you need to have in place going forwards.
Review your HR policies, particularly on flexible working, absence and sick pay, and decide how your business is going to manage the transition to “living with Covid-19” in line with your culture and values.
Keep talking to your employees as you work through the changes above, and the ongoing and ever-changing challenges of the pandemic (which isn’t over yet, remember).
What if I still have questions?
Give me a call or drop me a message. I’ll be happy to help.
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