As part of the government’s approach to learning to live with Covid-19, all legal restrictions relating to Covid-19 have been lifted and universal free testing has now ended. However, many questions remain for employers, which the raft of government guidance issued on 1 April does little to answer. Employers are, once again, being asked to navigate unchartered waters and to balance business needs against the potential risks to the health and safety of their workforce.
As can be seen from airlines having had to cancel hundreds of flights due to staff sickness, Covid-19 is still having a significant impact on businesses.
New guidance effective 1 April 2022
The government has published new guidance, including Living safely with respiratory infections, including Covid-19, Reducing the spread of respiratory infections including Covid-19 in the workplace, Covid-19 guidance for people whose immune system means they are at a higher risk and People with symptoms of a respiratory infection including Covid-19.
Universal free testing has ended
Only a limited number of people are now entitled to free testing, including people at serious risk of illness, NHS and adult social care staff, and those working in high risk environments. This means that the majority of the population are unlikely to know whether they have Covid-19 unless they or their employer pay for private testing.
Employers have the option of purchasing lateral flow tests for their workforce at the cost of around £2 - £3 per test. It may be difficult for many employers to justify making testing mandatory and, in any event, a policy of mandatory testing would be difficult for employers to enforce or police. Employers could offer private tests to their workforce on a voluntary basis, which may help to identify some cases of infection, but this will be costly.
Guidance for those with symptoms of respiratory infection
Employers may be wondering how to protect their workforce and ensure business continuity in an era of limited testing. One option for employers is to require staff to follow the Guidance, which advises anyone with symptoms of a respiratory infection to, “Try to stay at home and avoid contact with other people” and to, “Try to work from home if you can”. Indeed, employers are encouraged to consider how best to support their workforce to follow the Guidance as far as possible.
One of the challenge for employers is that the list of symptoms of a respiratory infection is extensive and covers most general ailments, including:
- Continuous cough
- High temperature, fever or chills
- Loss of, or change in, your normal sense of taste or smell
- Shortness of breath
- Unexplained tiredness, lack of energy
- Muscle aches or pains that are not due to exercise
- Not wanting to eat or not feeling hungry
- Headache that is unusual or longer lasting than usual
- Sore throat, stuffy or runny nose
- Diarrhoea, feeling sick or being sick
It is unlikely to be feasible for many workplaces to accommodate employees working from home every time they exhibit one of the above symptoms.
The Guidance does, however, suggest that the advice to try to stay at home and avoid contact with other people only applies to those with symptoms of a respiratory infection who also have a high temperature or are not feeling well enough to go to work or carry out normal activities. It implies that those with symptoms of a respiratory infection can still go to work and carry out their normal activities, providing they feel well enough and providing they do not have a high temperature.
Employers may choose to require staff to work from home if they exhibit any symptoms of respiratory infection, or they could also interpret the Guidance as requiring only those who feel unwell or have a temperature to remain away. Whatever policy an employer ultimately adopts, this should be clearly communicated to the workforce and consistently enforced, with management leading by example.
Positive cases of Covid-19
Some members of staff may still have access to Covid-19 tests (or their employer or the employee may pay for these), so will know if they are infected. The Guidance advises that those with a positive test result for Covid-19 should, “try to stay at home and avoid contact with other people for five days after the day you took your test” and “try to work from home if you can”. The Guidance implies that employees should try to stay at home for longer if they feel unwell as it states they should do so, “until you feel well enough to resume normal activities and you no longer have a high temperature if you had one.”
Those who test positive for Covid-19 are also advised to avoid meeting people at higher risk for 10 days after they tested positive
Those who are unable to work from home
Those who are unable to work from home for whatever reason, including due to the nature of their role or the suitability of their home environment, but who are well enough to work, are advised to, “talk to your employer about options available to you.” The Guidance gives no indication of what such options may be, but could include the employee being asked to take additional precautions when attending the workplace, such as wearing an effective face covering, avoiding close contact with other people, large meetings or gatherings, or anywhere that is enclosed or poorly ventilated. It might, for example, be possible for the employer to facilitate the individual working in a private room, if they usually work in a communal space in close proximity to others or to move them to another role for a week or so where they have reduced contact with the public.
If an employer requires anyone with symptoms or a positive test result for Covid-19 to remain away from the workplace in circumstances where they are well enough to work but cannot work remotely, the individual is no longer entitled to statutory sick pay (SSP). From 25 March 2022, those who are self-isolating or shielding due to Covid-19 are no longer entitled to SSP (unless they are incapacitated). If an employer prevents somebody who is ready and willing to work from working, that individual will be entitled to receive their normal pay. This will be financially unfeasible for many employers and such a policy would also be ripe for abuse by malingerers. Even if they receive full pay, a requirement not to attend the workplace may be met with resistance from employees who are keen to work, including those competing for promotion or who wish to attend an important meeting. However, an employer will need to weigh up the cost and possible conflict resulting from putting potentially infectious staff on paid leave against the cost and disruption of an outbreak at their workplace.
Close contacts of positive cases
Members of staff who have been in close contact with a positive case of Covid-19 (including household members) are no longer advised to self-isolate or work from home, but are encouraged to wear an effective face covering when in close contact with other people or in a crowded place and to avoid contact with vulnerable people.
Protecting vulnerable members of staff
As well as seeking to avoid the disruption of any outbreak of Covid-19 in their workplaces, employers should also be mindful of their duty to take reasonable care of the health and safety of its employees. This includes the health and safety of staff members who remain vulnerable to serious illness from Covid-19. The following groups are recognised to be at higher risk:
- Older people
- Those who are pregnant
- Those who are unvaccinated
- People of any age whose immune system means they are at higher risk of serious illness
- People of any age with certain long-term conditions
Most workforces will comprise members of some or all of the above groups and employers need to take reasonable steps to protect their health and safety. The Guidance gives little indication of what might be reasonable measures to take. Those who are unwell with symptoms of a respiratory infection or who have recently been in contact with someone with Covid-19 are advised to avoid close contact with anyone known to be at higher risk of becoming seriously unwell if they are infected with Covid-19, and those who test positive for Covid-19 are advised to avoid meeting people at higher risk for 10 days after they tested positive. Employers may choose to implement this Guidance into policy to protect vulnerable members of staff; however, this will not be without practical challenge and will also involve the processing of special category personal data.
Staff members who are immunosuppressed
There remain a number of people who, in spite of vaccination, remain at high risk of serious illness from Covid-19, due to a weakened immune system (being immunosuppressed) or certain other medical conditions. There is specific guidance for such people which currently advises people with compromised immune symptoms to, “consider continuing to wear a face covering in public spaces”, "reduce the time you spend in enclosed crowded spaces”, “practice social distancing if that feels right for you” and “work from home if this feels right for you – if you cannot work from home, speak to your employer about what arrangements they can make to reduce your risk.” It is likely that employers will, where possible, need to accommodate home-working for immunosuppressed individuals where at all possible or take additional measures to try to protect such individuals in the workplace.
Other considerations for employers
Most employers are no longer required to explicitly consider Covid-19 in their health and safety risk assessment but they may choose to continue to cover Covid-19 in their general risk assessment. Employers that specifically work with Covid-19, such as laboratories, must continue to undertake a risk assessment that considers Covid-19. There is also no longer any requirement to report workplace outbreaks of respiratory infections.
Guidance for employers also recommends they should:
- Consider how to support staff to get vaccinated
- Consider how to bring fresh air in and improve ventilation
- Keep the workplace clean and providing staff with cleaning products and sanitiser
Kerry Garcia
Sarah Taylor