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Q&A’S – What do the latest Covid-19 changes mean for you and your business?

Q&A’s – What do the latest Covid-19 changes mean for you and your business?

The government has announced the requirement to self-isolate if you test positive for Covid19 will be replaced by us taking “personal responsibility”. It sounds simple, but it’s not quite as straightforward as it would appear. To help you we have summarised what’s changing and provided some Q & A’s to help you navigate your way through the latest Covid-19 developments.  

What’s changing?

From Friday 1 April, 2022 

  • If you have Covid-19 symptoms you are asked to observe ‘personal responsibility’ in deciding whether you should remain at home.
  • Free symptomatic and asymptomatic testing will no longer be available for the general public, however the government has just confirmed that these will remain available for certain roles in the NHS and care home workers. We await to hear if this will apply to any other sectors.
  • Workplace risk assessments will no longer need to refer explicitly to Covid measures.
  • Sector specific guidance on working safely during Covid will be replaced with generic public health guidance.

Q: If someone who cannot work from home, has tested positive for Covid but is not unwell and has no symptoms, should they go to work or be paid to stay at home? 

A: Whether or not employees are required to remain at home will depend on what the employer’s policies require. Employers have to continue to comply with their duty of care to all employees and ensure they operate a safe working environment. Therefore you will have to consider what your position is on Covid-19 positive tests and update your policies. For example, if you have a number of clinically vulnerable staff working for you, you may not want to allow staff who test positive to attend the workplace. 

Employers can no longer reclaim SSP for Covid-19 absences so you will need to consider how you deal with these types of situations:

  1. From 1 April, 2022, if an employee tests positive but are not too sick to work, but you don’t want them to attend the workplace they could be entitled to full pay unless you change your contract of employment and policies to make clear what will happen in this scenario e.g. they will be required to remain at home for 5 days because you regard them as unfit for work and they will only be paid SSP or Company sick pay.  
  • An employee tests positive, has no symptoms but decides to stay home themselves – if an employee decides to stay at home themselves, they are not entitled to be paid full pay unless your policy permits them to do this or it’s an agreed period of absence (e.g. holiday or unpaid leave). If it’s not agreed then it’s an unauthorised absence and the employee could face disciplinary action.    

Q: One of your staff has developed Covid-19 and has symptoms but wants to work. Can you tell them to stay at home and what would they be paid?

A: The government wants Covid absences managed in the same way as other respiratory conditions such as flu and common colds. So, you don’t have to tell employees to stay at home simply because they have tested positive or have symptoms unless that is in line with your obligation to provide a safe place of work. If you feel the employee is too sick to work, then you would be in the same position as someone who has flu or another condition and you can tell them to go home as they are not fit to work. If they are off work sick then they should receive the sick pay provided for under their terms and conditions of employment.

Q: If an employee can work from home, has Covid but is fit for work and you need them to attend the workplace, can you force them to attend or discipline them if they refuse because they are concerned they are putting others at risk? 

A: From 1 April, 2022 if you think it’s safe for the employee to attend the workplace then it should be regarded as a reasonable management instruction to ask that the employee attends the workplace and the employee could be disciplined if they refuse to attend. However, you should consider carefully the reasons why someone is refusing to attend the workplace before you decide you are acting reasonably in making the request. It is likely there will be continuing concern among some employees about Covid, and you should ensure you handle the situation with sensitivity to minimise any potential employee fallout.

Q: If an employee gets Covid and feels too ill to come to work will they still get sick pay?

A: Yes, if an employee is too unwell to attend work and as long as they follow the usual sickness reporting processes, they are entitled to sick pay in accordance with their employment contract. SSP can no longer be reclaimed though.

Q: An employee says they know a colleague has tested positive and is showing symptoms and because of this, they don’t want to work with them. They have said they should go home and if not, they will go home themself. Can they do that? 

A: If the concerned employee went home without agreeing this with their manager first then it can be regarded as an unauthorised absence, and they could face disciplinary action. If they were to be insistent with their colleague that they must go home, then the employee could complain about their conduct, which could result in a grievance being made and potentially disciplinary action too against the concerned employee. You may be prepared to agree with the initial request and ask the colleague who is ill to work from home if they can do so, perhaps for a limited period of time.  However there is no legal obligation for an employer to send a Covid positive employee home unless you feel it is necessary to meet your health and safety obligations. It is essential that you have policies that reflect your approach to this and ensure it is communicated to all staff.

Q: Do I still need to have a Covid-19 Risk Assessment in place?

A: The current advice from the Health and Safety Executive (HSE) is that, despite the changes effective from 24 February, 2022 you should continue to reduce the risk of transmission by keeping your Covid-19 risk assessment updated. The working safely guidance still remains in force and requires employers to consider ventilation, staff illness and use of hand sanitiser, whilst keeping employees up to date with the measures in place. 

With effect from 1 April 2022 workplace risk assessments will no longer need to refer explicitly to Covid measures, but should be reviewed in the light of new public health guidance which will be published before then.

Q: Should I introduce an infectious diseases policy?

A: Unfortunately Covid is here to stay and therefore we would certainly recommend you consider having an infection disease policy, particularly as Covid restrictions, sector specific guidance and Covid health and safety risk assessments will no longer be applicable. This type of policy would cover assessment, control and management of infectious diseases but could also include an immunisation and vaccination policy. This will provide useful guidelines for employees and managers on minimising the risk of staff contracting and spreading infectious diseases at work and on dealing with infections if contracted and help make this easier to manage on a day to day basis.

Q: I want to update my Contracts of Employment and sick pay policies, what should I do? 

A: The best thing to do would be to get in touch with us so that we can advise you on the right approach to take and ensure you have carried out the connect steps to lawfully change your existing contracts and policies. It may be possible to change the contracts or policies without consulting with staff but it’s important to obtain expert advice on that first, so you don’t fall foul of any collective consultation obligations too.

Get in touch: 

We understand that the removal of all restrictions is likely to present challenges in the workplace. Our team of Employment Law Solicitors and HR Consultants are on hand to guide you through and help you manage your team during these challenging times. Get in touch if you need any assistance.