The End of Covid Restrictions – What Now for Employers?
- Employment Law
- 24th Mar 2022
Yesterday saw the remaining Covid provisions relating to SSP end, meaning that entitlement to SSP for eligible employees reverts to applying from day 4 of their absence. Moreover, the government has removed the requirement to self-isolate, and is removing free universal testing from 1 April 2022. So, what does this mean for employers managing Covid risks in the workplace going forward?
By Stephen Attree
MLP Law
Yesterday saw the remaining Covid provisions relating to SSP end, meaning that entitlement to SSP for eligible employees reverts to applying from day 4 of their absence. Moreover, the government has removed the requirement to self-isolate, and is removing free universal testing from 1 April 2022. So, what does this mean for employers managing Covid risks in the workplace going forward?
Employers have a continuing duty to ensure the health, safety and welfare of their staff and will need to consider their approach within the context of the government plans to push for ‘business as normal’ regarding Covid, as part of any risk assessment.
In particular, employers will need to decide whether, despite the proposed lifting of the guidance, they will continue to require those who test positive (or have symptoms) to stay away from the workplace to avoid spreading Covid. This throws up various dilemmas, not least the issue of managing and paying employees who report for work, despite displaying symptoms of, or actually having, Covid.
Employee Attitude to Risk
If you do not have a testing requirement for staff, you will not necessarily know if employees have the virus. Therefore, the first issue to decide is whether you are going to insist on continued Covid testing for staff, which may in large part be dictated by your workforce’s attitude to risk. Indeed, some employees may be relaxed about the situation to remove Covid restrictions, regarding the risk from the continuing pandemic as no greater than the risk of a cold or mild flu. Others, particular those at higher risk, may be more concerned than before about the risk of contracting Covid on the commute or at work, particularly if the employer does not require testing and/or self-isolation. It is therefore important to be clear to staff regarding your expectations regarding if and when they should test for Covid, setting out the circumstances when they should do so. An employer would not be obligated to provide tests in those circumstances but doing so may help to facilitate compliance with such a request.
Employers should also be aware of any employees who may be more vulnerable than others to infection, as this may mean that more stringent requirements are adopted specifically for them (for instance, ensuring they do not work closely with any colleague in their team who has Covid or Covid symptoms, where such individuals are not required to stay at home).
Incentive
If the employer wants to encourage staff with Covid to stay away from the office (whether they are symptomatic or asymptomatic), it may need to incentivise them, for instance, by agreeing to pay their usual salary during their absence. Clearly, however, this may prove a costly approach.
SSP
A more attractive approach for dealing with employees with symptoms/Covid is to rely on your usual sickness absence procedures and pay. Some employees may be reluctant to stay away from work, if they feel well enough to attend, where this will have financial implications. It is therefore important to have robust sickness absence polices, making it clear that if an employee feels unwell or has a contagious illness (regardless of how they feel), then they are obliged to take sick leave. Employers may find it useful to have a consistent approach in respect of all contagious illnesses, including colds and flu.
Hybrid working
Given the relative success of remote working during the pandemic, many employers have introduced, or are considering, hybrid working, or agile working, which means that staff attend the workplace for part of their working time and work remotely from home (or elsewhere) for part of their working time. This may be an appropriate solution for some members of staff, to ensure they remain away from the workplace but can still work (and be paid as normal), if they feel well enough to do so.
Rely on Vaccinated Population
Alternatively, you may not want to insist that employees with symptoms/Covid stay away from the workplace at all, instead relying on current government guidance and high national vaccination rates to truly embrace ‘business as usual’. If your business does adopt such an approach, it is important to keep reviewing and following current government guidelines, as recent employment tribunal decisions demonstrate that there is a reluctance to sanction employers who act consistently with such advice.
If you would like to advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.
About the expert
Stephen Attree
Managing Partner
Stephen is the Owner of MLP Law and leads our Commercial, IP and Dispute Resolution teams which provide advice on all aspects of the law relating to mergers, acquisitions, financing, re-structuring, complex commercial contracts, standard trading terms, share options, shareholder and partnership agreements, commercial dispute resolution, joint venture and partnering arrangements, IT and Technology law, Intellectual Property, EU and competition law, Brexit and GDPR.
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