Living with COVID-19

With requirements for self-isolation, statutory sick pay, and universal free testing being phased out, employers are left with the onus of ensuring the workplace is safe without the extra security provided by the government’s legal restrictions. However, notwithstanding the relaxation in restrictions, the infection rate in the UK is rising, a new Deltacron variant has emerged, and other major cities, such as Shanghai, are re-introducing lockdowns. With no plans for the government to back-pedal on the ‘Living with COVID-19’ Plan, employers will need to consider key issues and difficulties for employees and the workplace in the new regime.

Creating a Safe Working Environment

Employers have statutory and common law obligations to provide a suitable working environment for their employees. Under the Health and Safety at Work etc Act 1974, employers must ensure that they provide and maintain a safe working environment and adequate facilities and arrangements for employees’ welfare at work. They owe a duty of reasonable care for the safety of their employees.

As of 24 February 2022, the government removed the requirement for COVID-positive individuals (and those in close contact with them) to self-isolate. Instead, the UK Health Security Agency Guidance suggests those testing positive for COVID-19 should not attend work and should isolate for ten days. Furthermore, employees are no longer legally obliged to inform their employer that they have tested positive.

In order to ensure the safety of the workplace, employers are recommended to strongly encourage employees who test positive for COVID-19 to work from home and avoid spreading COVID-19 at the workplace, to prevent the workplace from becoming increasingly dangerous for clinically vulnerable employees. In situations where employees are unable to work from home, due to the nature of the job or otherwise, employers should consider creating or amending an existing COVID-19 policy to ensure that employees do not feel that due to pressures of ‘presenteeism’ they are attending work whilst testing positive for COVID-19 and putting their colleagues at risk.

A crucial element of the employer’s duty is to create a safe working environment for all employees. Careful consideration must be given to clinically vulnerable employees, whose vulnerabilities may in turn be categorised as a disability. Under the Equality Act 2010, a ‘disability’ is defined as an impairment which is either physical or mental and has substantial and long-term adverse effects that impact normal day-to-day activities. If clinically vulnerable employees are unable to work from the office safely due to their health and their job cannot be satisfactorily performed remotely, employers will need to consider making reasonable adjustments for these employees. For example, employers could look to move those employees’ desks away from a congested area or to where there is less foot traffic, or near a window so that there is adequate ventilation.

In the unfortunate circumstances where the options for reasonable adjustments are exhausted and clinically vulnerable employees continue to be unable to perform their roles at or above the standard expected of them, employers may need to consider dismissal on the basis of capability.

Statutory Sick Pay

The ‘Living with COVID-19’ Plan also includes changes to the statutory sick pay (SSP) arrangement. During the pandemic, employees were entitled to SSP from day 1 of their absence. However, now employees will only be entitled to receive SSP from day four of their absence or not at all if they are self-isolating but not unwell with COVID-19. This change in entitlement runs the risk of employees not disclosing their COVID-positive status and attending work in fear of not being paid.

Employers shall need to consider whether to amend their sick pay policies to expressly provide contractual sick pay to employees who are not necessarily ‘unwell’ but are being asked to not come into the workplace because they have tested positive for COVID-19, particularly where they are unable to perform work normally from home. As with any change in policy, employers will need to consider the significant added costs and budget in contractual sick pay for COVID-19 positive, but ‘well’ employees. Employers will need to review the cost-benefit analysis of the amendments to these policies and the impact on the business as a whole.

Regardless, employers have an implied duty to pay wages of employees who are ready, willing and able to perform work but cannot do so due to the result of a third-party decision or external constraint. In the Court of Appeal case of North West Anglia NHS Foundation Trust v Gregg [2019] EWCA Civ 387, the court ruled that it would be unlawful for wages to be deducted because of an ‘involuntary’ inability to work. By including in sick pay policies a monetary incentive for infected employees to not attend the workplace, employers can uphold their duties to maintain a safe and uncompromised working environment, however at a financial cost.

Testing

Maintenance of the safe and uncompromised working environment hinges on employees being able to show accurate proof of positive infection, or lack thereof, which proves more difficult from 1 April 2022.

Over the past year, employers have used the government’s provision of free rapid antigen testing kits as a safety net against COVID-19 entering the workplace. From 1 April 2022, free asymptomatic testing will cease for most of the population in England and Wales and it will neither be legally required nor recommended when other methods of ensuring asymptomatic infection is not passed on to colleagues. Such methods include, Perspex partitions between desks, increased and adequate ventilation, sufficient cleaning regimens, and good hand hygiene.

On 29 March 2022, Sajid Javid announced that free asymptomatic testing will only be available for hospital patients, individuals who are at a higher risk of getting seriously ill, and individuals who live in high-risk settings (i.e. NHS, social care, and prisons).

Although clinically vulnerable employees may be eligible for free test kits, their colleagues may not be, therefore employers will need to consider balancing the risk for these employees against the benefit of having employees back in the office and not fully remote.

Employers may need to consider what further procedures they can put in place, whether that includes providing testing kits to employees (and bearing the (full or part) associated cost), asking for face masks to be worn indoors, or for temperature checks to be undertaken- or none at all, and requiring employees presenting with any cold or flu symptoms to not come into the workplace.

If employers rely on employees to pay for tests out-of-pocket, they run the risk of employees not being truthful or refusing to test. Without any provision for testing and the lack of government mandates, employers may have to deal with a tricky situation of balancing the health and safety of the workplace with the extra financial burden being placed on its employees. Over the coming months, employers will continue to navigate their responsibilities of maintaining a safe working environment with the relaxation in the government’s laws and regulations and the onset of the ‘Living with COVID-19’ plan. With the removal of government guidance, employers will need to conduct a cost-benefit analysis of mitigating the risk associated with the relaxation of the restrictions. In light of the high probability of risk in the workplace, employers should continue to encourage their employees to take up their booster jab (when invited to do so) and allow for time off accordingly. Furthermore, employers should consider investing in and supplying testing kits if they will be hosting large (indoor) events with many participants both from within the company and externally.

Your legal advisers at Memery Crystal recognise this is unchartered waters for many employers. Please get in touch with the authors below in case you have any queries or require assistance on employer obligations in light of the government’s ‘Living with COVID-19’ plan.