In depth

Living with COVID-19 - Your questions answered

Gateley Legal

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On Monday 21 February, the government revealed the “Living with COVID-19” plan detailing that most of the legal rules introduced to protect the public against COVID-19 will end in England within the next few weeks.

The plan refers protecting and supporting citizens by, amongst other things, enabling society and the economy to open up more quickly than many comparable countries. The plan is clear that vaccines will remain at the heart of the Government’s approach to living with the virus in the future.

The first step took effect on 24 February 2022 when the legal requirement to self-isolate was removed for people with COVID-19. In addition, close contacts no longer have to test for 7 days. Contact tracing has ended.

Guidance will remain in place that those who test positive should stay at home and avoid contact with others for at least five full days. However, it will no longer be a criminal offence if an individual does not comply. It follows that an employee will not be under any duty to inform their employer that they have COVID-19 or that they should isolate. There will be specific guidance for staff in some industries such as healthcare.

The next change will be that from 17 March the ability of small and medium sized employers to recover Statutory Sick Pay (SSP) will end. The removal of SSP Rebate Scheme will mean that final claims for up to 2 weeks SSP will need to be submitted by 24 March 2022 and can cover absences due to COVID-19 only up to 17 March 2022.

On 24 March employees unable to work because they are sick or self-isolating due to COVID-19 will no longer be entitled to receive SSP from the first day of their absence. Instead, the pre-pandemic SSP rules will again apply which will mean that there will normally be three-waiting days before an employee is entitled to receive payment.

From 1 April Covid tests will no longer be free for most people. Also from this date the duty on employers to explicitly refer to COVID-19 in a health and safety risk assessment will be removed. It will be just another factor to take into consideration in the assessment of whether the workplace is safe.

These changes have been announced for England only. The rules in Scotland and Wales will be different as some restrictions are currently retained in those countries.

The changes have caused many employers to express some concern in respect of what steps they can take now in balancing the requirements for employees to attend work and the risk that Covid-19 may spread to other employees including those that are vulnerable. Employers are taking different approaches, taking into account a variety of factors such as the industry and whether home working is a possibility.

So where does that leave employers?

Is there any legal duty to self-isolate now?

The simple answer is no. In England the legal duty to self-isolate ended on 24 February this year.

The self-isolation rules remain in Scotland and Wales for now though.

In England Government advice/guidance remains that if a person does test positive they should stay at home and avoid contact with others for at least five full days and then continue to do so until they have received two negative test results on consecutive days.

The removal of self-isolation in England has the potential though to create to some problems for employers and employees. The employee who has no symptoms whatsoever or just mild may still want to attend work and the fact they aren’t self-isolating doesn’t mean they will break the law anymore.

Can we tell employees to remain away from work if they have COVID-19?

Yes. Whilst employees won't be under a legal duty to self-isolate or notify their employers that they have the virus employers can still have rules around attendance that require employees to remain away from work if they have symptoms or have tested positive.  We’ve used the comparison recently to those in the food industry who have rules around other infectious illnesses, such as D&V bugs etc.

Note also that updated guidance was issued by the UK Health Agency on 24 February 2022 for people with COVID-19 and their contacts which warns that:

“You can pass on the infection to others, even if you have mild symptoms or no symptoms at all. If you have COVID-19 you should stay at home and avoid contact with other people.”

It recommends that:

“You should not attend work. If you are unable to work from home, you should talk to your employer about options available to you. You may be eligible for Statutory Sick Pay”.

In addition the Working safely during coronavirus (COVID-19) has been updated with the changes that there is no legal requirement to self-isolate if someone tests positive but it still advises that “people who test positive for COVID-19 should continue to stay at home and avoid contact with other people”.

What do we pay someone who is tells us they are staying at home because they have COVID-19?

Currently and up until 24 March 2022 employees will be entitled to Statutory Sick Pay (SSP) from the first day of their absence (as per the new legislation that came in last year. 

However, from 25 March 2022 the three waiting days for SSP are being reintroduced regardless of COVD. 
So, if an employee is facing the prospect of zero pay for 3 days this is likely to discourage some employees from remaining away from the workplace particularly if their symptoms are mild or even non-existent.

One option for employers could be to continue paying an amount equivalent to SSP from day one of their absence if it is related to COVID-19, in other words retaining the current statutory scheme. This might be described as discretionary sick pay and the right might be applied to SSP only.

You might have a right to contractual sick pay already which may cover the right to pay for any absence from day one already.

Of course, if home working is an option the employee may be able to avoid taking any time off and will continue to be entitled to full pay.

Will an employee be able to claim full pay on the basis they are ready willing and able to work?

This is a topic which may generate disputes when dealing with the changes. The employer tells the employee to remain away from work, but the employee says that they are “ready willing and able to work”. The employer can no longer rely on the legal obligation for an employee to self-isolate and usually where an employee is ready, willing and able to perform work in accordance with the contract, there is an implied term that the employer has an obligation to pay wages.

Even if the employee is offered sick pay during their absence if it is less than full pay there is a risk that they will make a claim.

The employer may of course dispute that the employee is “fit” and “able” to work given that they have symptoms or have tested positive.

The arguments are finely balanced and as yet we have no cases that have considered this particular issue. 
However, given the Health Agency guidance; the Working Safely with COVID guide and the duty of care owed to other employees, it may be regarded that their presence in the workplace will pose an unacceptable health and safety risk.

In all cases consideration would need to be given to the terms of the contract of employment and whether there is any provision that would support the position that the employee is not “fit” to attend work.

It will also be the case that some casual employees will have no entitlement to be provided with work and therefore have no entitlement to pay if the employer does not provide them with work due to a fear of possible infection.

Of course, it may be that some employers chose to allow employees with Covid-19 to work as normal. Or for those that don’t allow it, as employees no longer having to test, or report that they have Covid-19, an employer simply might not know the employee has Covid-19, in the same way they might not know for those employees who were asymptomatic previously and didn’t test. 

Will sick pay costs go up as a result of the changes?

This is clearly a possibility given the high levels of COVID-19.
Small or medium business have been able to reclaim the SSP for COVID-19 related absences for up to 2-weeks but that ends on 17 March 2022. 

And then employers have until 24 March 2022 to submit any new claims or amend claims for absence periods up to 17 March.

Sickness absence costs caused by COVID-19 will be the responsibility of the employer in the same way that they would if the employee was absent for any other health condition.

Larger businesses have had to fund the full SSP costs in any event through the pandemic.

Any business will need to consider the terms of their sick pay schemes moving forwards and whether payments will be due for absences related to COVID-19.

Will businesses need to pay for tests for employees?

From 1 April 2022 free testing facilities will be withdrawn in England for the vast majority of people.

If employees are going to be required to test prior to attending work a decision will need to be made in respect of who will pay for the tests.

Given that this will be a work-related expense it is likely the employer will need to cover the cost. If the costs were not covered it would amount to a reduction in pay for the employee that could impact on whether the employer is complying with their national minimum wage obligations.
 

Will managers be able to request that employees take tests?

There may be situations when an employee is displaying symptoms or another employee reports that a colleague has got COVID-19 but has attended work.

In these circumstances the manager may wish to request that the employee take a test to ensure that they are not at risk of infecting others in the workplace.

It will be important to have in place a clear policy in relation to testing in the workplace. This should be communicated to all employees.

ACAS has produced a guidance document called Workplace testing for coronavirus (COVID-19)
This emphasises that there is no legal requirement for staff to be tested for COVID-19. However, some employers may want to introduce testing as part of their workplace policy.

The guidance advises that any policy should be first discussed with staff or employee representatives. There are a number of issues that will need to be covered in these discussions such as how testing would be carried out, how staff would get their test results etc. An employer cannot force an employee to be tested without their consent. 

Whether it would be unreasonable to prevent an employee from attending work without a negative test when they are not exhibiting symptoms will depend on the individual circumstances.

The changes in the legislation will mean that there may be a risk of challenge to such rules. However the Government guidance has previously recommended that private-sector employers offer their on-site workforce access to a minimum of two lateral flow tests every week.

It would appear that the risk of a policy being challenged will be reduced if the testing is limited to employees with symptoms. The consequences of refusing to be tested will need careful consideration.

The employer may have understandable health and safety reasons for testing, particularly in respect of employees who are displaying symptoms.

An employer could attempt to rely on the request amounting to a reasonable management instruction on the basis that it is an instruction intended to protect health and safety. The failure to consent to testing may be treated as failure of the implied contractual obligation to obey lawful and reasonable orders and disciplinary proceedings may follow.

Whether dismissal in these circumstances would be reasonable will be down to the particular facts. Given the recent changes employers may want to take a more cautious approach. In any event it will be important to keep the policy in relation to workplace testing under review.

Do we need to continue to follow the Guidance on working safely with COVID-19?

Currently employers should still follow the guidance Working safely during coronavirus (COVID-19). As noted earlier this has been updated with the changes that there is no legal requirement to self-isolate if someone tests positive, but it still advises that “people who test positive for COVID-19 should continue to stay at home and avoid contact with other people”.

However in the “Living with COVID-19” guidance published on 23 February 2022 it states that from 1 April, the Government will replace the existing set of ‘Working Safely’ guidance with new public health guidance.

This also states it will be important that “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”.

In preparing the new public health guidance the Government has confirmed it will consult with employers and businesses to ensure the guidance continues to support the management of the risk of COVID-19 in workplaces.

Whilst we do not know how much of the ‘Working Safely’ guidance will be replicated in the new public health guide it has been confirmed that ventilation in the workplace will continue to be promoted as an effective step in reducing the risk of the spread of COVID-19 whilst working indoors.

It follows that it might be even more important to identify poorly ventilated spaces going forwards and take steps to improve fresh air flow as there will be an increased chance that someone in work may have COVID-19.

What if an employee refuses to attend work now that the legal safeguards have been removed?

Since 19 January 2022, the work from home ended and, therefore, an employer’s instruction to attend the workplace is likely to be regarded as a reasonable and lawful instruction.
If an employee has concerns about attending the workplace the employer should discuss these with them and try to provide some reassurance in respect of the measures in place to keep them safe.

If the employee is clinically vulnerable or they live with someone who is clinically vulnerable, then obviously care should be taken. It may be that working from home will be the solution but there will be many cases where the employee working from home will not be practical as they will be unable to meet the needs of the business.

If no alternatives have been identified and despite the reassurances given the employee still refuses to attend it may result in disciplinary action being taken and potentially dismissal.

However, there is the risk that an employee's refusal to attend work due to a belief that they will be at risk of contracting COVID-19 could be protected under section 100 of the Employment Rights Act 1996 .This section protects employees from dismissal on the grounds of absence from work if that absence was due to a reasonable belief that attending work would put them in “serious and imminent danger” and they could not reasonably have been expected to avert that danger.

The concept of “danger” has been interpreted broadly and could include the risk of contracting COVID-19 from an infected colleague or client/customer, although the danger would need to be reasonably believed to be serious and imminent.
There have been examples of claims succeeding on this basis where the employer has not taken adequate steps to reduce the risk of infection.

The employee does not need to demonstrate that such a danger actually existed. The question for the Tribunal is whether they reasonably believed that attending work would put them in danger.

This underlines the importance of effective communication with employees in terms of the measures taken by the employer to minimise the risk. The employee's own health will also be a relevant consideration when assessing this.

Disciplinary action short of dismissal could also give grounds for a claim. Because there is also a protection against detriment section in the Employment Rights Act at 44(1)(d).

Another potential claim to take into account is under section 100(1)(c) of the ERA 1996. This protects employees who use reasonable means to bring to their employer's attention circumstances connected with their work that they reasonably believe are harmful or potentially harmful to health and safety. If an employee has raised concerns about the protections put in place to protect employees and they are dismissed or treated detrimentally as a result, they may have a claim.

It could also be argued that this would give rise to a possible whistleblowing claim too

Do we need to carry out a health and safety risk assessment to include COVID-19?

Currently employers are required to explicitly cover the risk from COVID-19 in their risk assessment.

From Friday 1 April 2022 that requirement will be removed. The Government states that its intention “is to empower businesses to take responsibility for implementing mitigations that are appropriate for their circumstances”.

The duty to carry out a risk assessment under the Health and Safety Regulations will continue and going forwards it will depend on the work environment what that might need to cover.

Obviously, employers that specifically work with COVID-19, such as laboratories, must continue to undertake a risk assessment that considers COVID-19 specifically.

A general risk assessment in other work environments may not need to focus on COVID-19. However, it needs to be taken into account that employers have a duty under the common law to take reasonable steps to prevent foreseeable harm to their staff and an on-going duty under health and safety legislation to identify what could cause injury or illness in their business.

When identifying the potential ‘hazards’ and assessing how likely it is that someone could be harmed it will be important that infection risks are not ignored and that appropriate steps are taken to remove or reduce the risk as would be required when dealing with any other hazard to health in the workplace.

When carrying out the risk assessment it will still be important to be aware that COVID-19 can still cause serious illness particularly with someone who is vulnerable.

What if we have a policy requiring employees to stay at home if they have Covid, but an employee still comes to the workplace when they have covid and we later find this out – can we discipline them? 

Yes, an employer may take disciplinary action against an employee where they have breached a rule in respect of attendance at work which is aimed at protecting the health and safety of employees, clients and customers.

The appropriate sanction will need to be considered taking into account the particular circumstances of the individual and the workplace setting. In some circumstances it may amount to gross misconduct where for example the employees knowingly breached the rule and placed clinically vulnerable people at risk. However, given the recent relaxation of the statutory restrictions there will be many occasions where dismissal might fall outside the band of reasonable responses after all you would not usually consider dismissal for an employee who came into work with flu.

What if we require employees to travel abroad as part of their work?

If travelling abroad as part of work, it will be important for employees to be able to meet the entry checks and COVID-19 vaccination requirements of the country to which they are travelling.

Typically, this will involve showing COVID-19 vaccination status. However each country may vary and checks should be made on the Travel abroad from England during coronavirus (COVID-19) website to clarify whether there are restrictions on people entering from the UK; whether proof of vaccination status or proof of a negative COVID-19 test is required and whether there are any quarantine rules in place.

I have an employee who is based in England but has to travel to Scotland for their work – presumably they need to comply with Scottish rules whilst there?

Yes absolutely. We haven’t covered the rules in Wales and Scotland in this session as the plan only related to England.

As things stand in Scotland and Wales, whilst some rules have been relaxed in relation to where masks need to be worn and when proof of vaccination status is required for entry into venues the self-isolation and trace rules remain in place.

The devolved Parliaments have committed to undertaking periodic reviews to assess whether further rules can be safely relaxed in the coming months.

Therefore, if you have an employee travelling to Scotland for work, they cannot travel to Scotland with Covid. Access to lateral flows and PCRS at the moment will remain free, again, that may change.

If a business wants people to self-isolate and send them home do they have to pay full pay or SSP as it says in their terms?

We believe that this is a topic that could generate some disputes going forwards and we do address the issues that need to be considered in questions 3 and 4 in today’s talk.

Whether the employee will have a right to full pay if they present themselves for work as ready willing and able to work is going to be an issue.

If an employee tests positive and requests to work from home, can we ask for proof of a positive test?

You might ask for proof, but it may not be the best course of action. You will need to consider what that will involve. What would constitute proof? Would a lateral flow test be sufficient?

If the employee has to purchase a test the costs would need to be met too.

Putting in place a strict requirement for proof has the risk that this might encourage employees to attend work even if they test positive.

An exception might be where the employee has repeatedly made such reports and there are grounds to believe that the claims are not credible.

In a unionised environment, what would be the response on government advice as distinct from Statutory requirements.

Agreeing guidelines as to what steps will be taken to protect the health and safety of employees is likely to be of paramount importance where you have a unionised environment.

This might cover working safely guidance that sets out expected conduct in the workplace, safeguards, safety rules, procedures for reporting sickness and sick pay arrangements which may of course be enhanced in comparison to the statutory scheme.

What is your advice on dealing with pregnant employees who want to work from home from 26 weeks (BMA obstetrics) when it is not possible to do so?

Risk assessments will need to be carried out for pregnant employees. The risk of COVID-19 will need to be taken into consideration. The current guidance states that pregnant women who are 26 weeks pregnant and beyond face a bigger risk of complications from COVID-19. However, general advice on reducing risk of COVID-19 infection applies at all gestations.

Pregnant workers should be supported by their employer with appropriate risk mitigations in line with recommendations provided by the workplace risk assessment. Employers should make sure the controls identified by a risk assessment for example adequate ventilation, good hygiene and cleaning, are applied strictly.

Pregnant workers should continue working only if the risk assessment advises it is safe to do so after suitable control measures have been put in place. Pregnant workers should be involved in the risk assessment process and be satisfied that their continued working in the area does not put them or their baby at risk.

Where a significant health and safety risk is identified for pregnant workers, employers should adjust the working conditions or hours to remove the risk, where reasonably practicable to do so, or offer alternative work on the same terms and conditions. If this cannot be done, employers should suspend pregnant workers on full pay. This is in line with normal requirements.

The nature of a risk assessment means that the particular workplace and occupation has to be taken into consideration to decide whether it would be appropriate to suspend the employee.

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