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On 21 February 2022, the Government released the new Living With COVID-19 guidance

Background timeline to changes

We have considered what the Coronavirus update from the Government means for employers and the key issues that they are likely to be navigating over coming months.

From 24 February 2022

From 24 March 2022

From 1 April 2022

What does this mean for employers?

The changes over recent months have emphasised that we are shifting away from mandatory Government rules. Instead, the onus has been placed on individuals and employers to take personal responsibility. This is intended to empower businesses to take responsibility for implementing mitigations that are appropriate for their circumstances.

Despite the changes having taken effect, employers should continue to ensure that they are communicating with their employees about their working arrangements. This may involve reaching out to staff to understand their concerns, communicating what steps have been taken to reduce risks and discussing if anything more can reasonably be done to address any remaining concerns.

We have set out below the key questions for employers to consider.

How should employers deal with employees that are anxious about attending work?

Some staff may remain apprehensive about the changes. In particular, employees may now be concerned that other staff members that have tested positive for COVID-19 are no longer going to be required to self-isolate. In addition, those that are clinically vulnerable (or those that live with vulnerable individuals) may remain concerned. This may lead to employees refusing to attend work, or querying what arrangements will be in place.

Irrespective of the changes, employers still owe general health and safety duties toward all of their staff. Legally, employees are protected from dismissal on the grounds of absence from work if that absence was due to a reasonable belief that attending work would put them in serious and imminent danger (and they could not reasonably have been expected to avert that danger). The employee does not need to demonstrate that such a danger actually existed. The question for the tribunal is whether they reasonably believed that attending work would put them in danger.

Whilst we have limited case law in this area, a tribunal is likely to take into account the extent to which the employer has complied with Government guidance and clearly communicated this to the individual. It may also consider any mitigating measures the employer has taken, alongside medical evidence relating to the severity of the COVID-19 variant at the relevant time. This will certainly be relevant (although not necessarily determinative) of whether a fear of danger is deemed reasonable.

The new guidance outlines that employers should continue to consider the needs of employees at greater risk from COVID-19, including those whose immune system means that they are at higher risk of serious illness from COVID-19. Where appropriate, an employer should also consider obtaining input from Occupational Health to see whether there are reasonable adjustments that could be made to support the employee in line with their usual obligations toward staff that may have a disability.

What happens if an employee now tests positive for COVID-19?

If the employee is unwell and doesn’t attend work

From 24 March 2022, the rules regarding SSP changed and it is now only payable from day 4 of a period of incapacity. This means that, if an employee becomes too unwell to work, whether for COVID-19 or any other reason, they would need to follow absence reporting procedures and would be entitled to SSP (or enhanced company sick pay) in the usual way.

If the employee feels well enough to attend work

This situation is more challenging for an employer to navigate. If an employee can work from home, the situation is more straightforward as they can be asked to work from home and paid as usual. However, if the employee is unable to work from home, this is more problematic.

The employee may express a preference to attend work, particularly if they are asymptomatic or experiencing very mild symptoms.

From 24 March 2022, the SSP rules were amended and the usual (pre-COVID-19) rules apply. Therefore, if an employer does not want an employee to attend work due to testing positive, they would need to consider suspending them on full pay. It would be reasonable for an employer to require proof of a positive COVID-19 test in these circumstances. Employers may also wish to review their company sick pay rules (if applicable) to consider the scenario where an employee tests positive but feels well.

Do employers still need to update their risk assessments?

In April 2022 the Health and Safety Executive (HSE) removed the health and safety requirement for every employer to explicitly consider COVID-19 in their risk assessments.

Despite this, the HSE notes that many employers may opt to continue to actively demonstrate that they have properly assessed the risk and have taken appropriate steps to mitigate these risks. Involving employees in discussions and demonstrating that risk assessments have been carried out will indicate that the employer is taking their employees’ health and safety seriously.

Should employers be continuing with other COVID-19 measures?

The new guidance outlines that employers should continue identifying poorly ventilated spaces and take steps to improve fresh air flow. It also emphasises the importance of following basic rules of good hygiene.

Some employers may also want to continue with other measures that have been in place during the pandemic (e.g. mask wearing, social distancing etc). The provisions may be imposed as a blanket provision or they could be potentially limited to key situations where an employee is customer facing, or times when they are moving around communal areas. Employers should think carefully about their rationale for implementing measures in line with their risk assessments and their ongoing consultation with staff.

Some employers may also wish for staff to provide proof of a negative lateral flow test before attending the workplace. Given that free testing ended in April 2022, companies will need to cover the cost of any testing that they require and ensure supplies are in place to resource this.

If you would like to discuss anything around the most recent Coronavirus update please contact a member of the Employment team.