The government is once again advising office workers to work from home if they can. This is, however, only guidance. Unlike at other times during the pandemic, there is no statutory prohibition on workers attending the office (unless they are legally required to self-isolate). To a large extent, whether employees are asked or permitted to work from home may be determined by their employer, balancing a number of legal and practical risks.
The government has also updated its rules on self-isolating for close contacts of positive cases of Covid-19, with implication for employers.
Updated guidance to work from home
Updated guidance advises that, from 13 December, everyone who can work from home should do so. The guidance is expected to remain in place for at least six weeks, with a review of the situation after three weeks. Anyone who cannot work from home (for example, because they need access to equipment or their role must be completed in person) should continue to attend the office. However, if a worker needs to attend the workplace, they should consider taking lateral flow tests regularly.
Employers’ health and safety duties
Employers find themselves in a difficult position, balancing a number of priorities, with little direction from the government. All employers are under a legal duty to take reasonable care of the health and safety of their employees. With rising cases of Covid-19, it may be safer for employees to work from home than attend the office. Even if precautions have been taken to make the office “Covid-secure”, office attendance inevitably increases the likelihood of transmission and employees may also be exposed to additional risk on their commute to work if they take public transport. Clearly, employers will want to minimise the number of workers contracting Covid-19 in order to limit disruption to the business and may choose to discourage office attendance for this reason. Employers may also be concerned about the detrimental impact on their reputation of facilitating large scale office attendance in contravention of government guidance, especially if there is an outbreak of the virus or staff members become seriously ill and require hospitalisation.
Risks of forcing reluctant staff into workplace
Given the current government guidance to work from home, employers should be cautious about requiring reluctant employees to attend the office, where they are able to work effectively from home. There are a number of legal risks associated with forcing an employee to attend the office in these circumstances, especially if the employee is clinically vulnerable to Covid-19 or shares a household with a vulnerable person, is genuinely anxious about attending the office, or has a disability. Imposing draconian policies on genuinely anxious members of staff will also have a negative impact on employee relations. That said, provided their employer has followed the government’s guidance on reducing the risk of transmission in their workplace, it is unlikely that an employee will be successful in arguing that they or household members are, objectively, in serious and imminent danger as a result of them attending the office (giving rise to a legal claim against their employer).
Compelling reasons for staff to attend office
On the other hand, employers should also be mindful of the wellbeing and mental health risks of mandating that all employees work from home. In many cases, there may be compelling reasons for workers to attend the office, even if they are practically able to perform their role from home. The guidance expressly directs employers to consider whether home working is appropriate for workers facing mental or physical health difficulties, or those with a particularly challenging home working environment. In some cases, working from home may increase an employee’s risk of domestic violence.
Consider home working on case by case basis
Employers should, therefore, wherever possible avoid blanket policies about any requirement to work from home. Instead, they should consider each employee’s circumstances on a case by case basis, ensuring that any risks are appropriately assessed and recorded. In any event, given the emergence of the Omicron variant and the new guidance to work from home, employers should update their health and safety risk assessments and take appropriate steps to prevent and minimise identified hazards, both for those attending the office and for those working from home.
New rules on self-isolation
From 14 December, people who are fully vaccinated and identified as a contact of someone with COVID-19 (whether the Omicron variant or otherwise) should take an NHS rapid lateral flow test every day for seven days. They do not need to self-isolate providing they receive a negative test result each day. These new rules replace the requirement for fully vaccinated close contacts of the Omicron variant to self-isolate for ten days, which was far more disruptive to people’s lives.
Limit contact during seven day testing period
Anyone identified as a close contact of a positive case of Covid-19 is strongly advised to limit contact with people outside their household, especially in crowded or enclosed spaces, and with anyone who is more vulnerable, during the seven day test period. They are advised to follow guidance on wearing face coverings and working from home where possible. In view of this advice, in place because of the higher risk of close contacts contracting Covid-19 themselves, employers may consider requiring close contacts to work from home during the seven day testing period if they otherwise would not.
Unvaccinated members of staff
Anyone who has not received two Covid-19 vaccinations at least 14 days before contact with a positive case must self-isolate for ten days. Employers are liable to a fine of up to £10,000 if they knowingly allow an employee to attend the workplace in breach of a legal requirement to self-isolate. The option to undertake daily testing is not available to the unvaccinated unless they are unable to be vaccinated for clinical reasons (in reality, this will apply only to a very small number of people) or are part of an approved clinical trial for Covid-19. Employers should, therefore, expect higher levels of absence from unvaccinated members of the workforce, not only because they remain at greater risk of contracting Covid-19. For this reason, an employer may be interested to know their employees’ vaccination status, but should ensure they conduct a data protection impact assessment before requesting this special category data and process such data lawfully. There are also discrimination risks associated with making employment decisions based on an employee’s vaccination status.
Hannah Ford
Sarah Taylor