On 21st February, the Prime Minister confirmed the removal of all Covid rules in England and unveiled plans for how the country will Live with Covid going forward.
From 24th February, all Covid regulations in England are lifted, including the legal requirement to self isolate following a positive test.
The remainder of this article sets out the position as it stands now, and what the changes mean for employers.
An end to the work from home guidance was announced on 20th January as the Plan B’s measures were lifted, and with them ended compulsory mask-wearing and the mandatory Covid-passes.
Living with Covid plan: Key points for employers
- From 24th February 2022:
Legal duty to self isolate ends. Those testing positive and their close contacts (regardless of vaccination status) are no longer required by law to self isolate. However the Government is still advising self isolation following a positive test for at least 5 days and until there has been 2 negative test results on consecutive days.
- Routine contact tracing ends. Contacts will no longer be asked to self isolate or advised to take daily tests. Instead guidance will set out precautions for those who live in, or have stayed overnight in, the same house as a positive case, in order to reduce risk to others. Other contacts will be advised to take extra care in following generic public health guidance on ‘safer behaviours’
- Individuals are no longer legally required to tell their employers when they are required to self isolate – or indeed have tested positive.
- The end of the self isolation support payments for those on low incomes that are asked to self isolate. People who were required to self isolate before February 24th have 42 days from the first day of their isolation to apply.
- The Health Protection (Coronavirus Restrictions) (England) (No.3) Regulations are revoked.
- From 24th March
- The Covid 19 changes to the Statutory Sick Pay provisions will end – SSP will no longer be payable from day one if people are unable to work because they are self isolating due to Covid 19. The Small Employer Rebate will also end. SSP will revert to pre pandemic rules.
- From 1st April
- The Government will remove the Health & Safety requirement for every employer to explicitly consider Covid-19 in their risk assessment. The intention is to let businesses decide the appropriate steps they need to take to limit the risk of Covid-19 in their workplaces.
- Free lateral flow and PCR tests will no longer be available to the general public, except to the over 75s and those with weakened immune systems.
- The existing “Working Safely” guidance by specific sector, will be replaced by new public health guidance. “Employers should continue to consider the needs of employees at greater risk from Covid-19, including those whose immune system means they are at higher risk of serious illness from Covid-19.” The Government will be consulting with employers and businesses to “ensure guidance continues to help them to manage the risk of Covid-19 in workplaces”.
In essence, the Government plans to consolidate the guidance it gives to the public and to businesses, in line with public health advice. It will also update guidance setting out the ongoing steps that people with Covid-19 should take to minimise contact with other people. This will align with the stopping of testing, so from 1st April 2022. So not much more guidance to look forward to then! In addition, there will be ongoing focus on good workplace / indoor ventilation, (CO2 monitors anyone?). The Government has already commissioned research into this and a report on how buildings can be made more infection resilient will be published in May. It will continue to encourage employers to identify poorly ventilated spaces and take steps to improve air flow. It’s clear then that despite its overall aim of a looser reign, the Government will continue to advise employers on the steps they can take to mitigate the risks of Covid-19 for a while yet.
What does this mean for employers?
The removal of the Covid-19 specific Health & Safety requirements does not change employers’ legal duty to take reasonable care and steps to ensure the safety of their workers at work – whether in the workplace or at home. This includes physical safety and can include mental wellbeing.
Even though all signs are that the pandemic is easing, there is still huge uncertainty and workers may still be concerned. Employers will need to make some important decisions, and to be flexible in these, for example:
- People who were clinically vulnerable / shielding, or caring for someone in this category, may still be very reluctant to come back to work. We look at this below, in more detail.
- Bearing in mind that free tests will become harder to obtain and then no longer available, form April 1st, employers will need to decide who covers the cost of testing if the business requires staff to test before coming into the workplace. This may seem less pressing in the coming spring and summer, but may need to be revisited in the autumn and winter months when, as with seasonal flu, cases will inevitably rise.
- As Covid-19 Statutory Sick Pay allowance reverts back to pre pandemic rules, after 24th March, employers will need to decide if they will assist and/or encourage staff to stay at home if they are feeling unwell with additional contractual sick pay. Whether and how long to continue to ask staff to self-isolate if testing positive/symptomatic, or a close contact of someone testing the same.
- What updates to make to their health and safety risk assessment and health and safety measures in the workplace.
- How to respond to people who refuse to return, and/or request remote or flexible working, given the inevitability that some will see the change from mandated restrictions to the new Living with Covid environment as increasing the risks of returning to the workplace.
Most employers will by now have adopted varieties of hybrid working. Continuing with these arrangements for these situations listed above may be the solution. It is also worth noting that the Government recently published a consultation document, Making flexible working the default, proposing various reforms to the right for employees to request flexible working, taking into account changes in working practices brought about during COVID-19 pandemic. The main change would be making the right a “day one” right, removing the requirement for 26 weeks qualifying service, further details are expected in the later half of 2022.
Workers who have been shielding / those reluctant to return to the workplace
If you have a member of staff who was clinically extremely vulnerable, or caring for someone who is vulnerable, and he/she is reluctant to come back to the workplace, it is unlikely you will be able to force them to do so.
Employers will still need to take that person’s individual situation into account. This is because of the health and safety risk of forcing them back with the risk of them contracting Covid-19 at the workplace. Individual discussions should always take place with these categories of workers. After over a year of being asked to shield due to Covid-19, the clinically extremely vulnerable may allege disability discrimination protection and request reasonable adjustments be made.
Agree a return plan with the employee, taking account of the employer’s policies in relation to Covid-19 and any necessary adjustments to enable the employee’s return. The employer should update their Risk Assessments for these changes and for these particular groups of staff.
The NHS will maintain the Shielded Patient List and, should levels of Covid-19 increase in communities, those at highest risk may be advised to take more restrictive measures to keep themselves safe. Employers should therefore plan for these employees having to work from home again.