UK Covid-19: recent developments for employers on CJRS, working safely and international travel

Employers have had to respond to continual changes to Covid-19-related rules and guidance over the last year, and the last month has been no exception.  Of course the biggest change has been the end of the national lockdown in England and the introduction of a revised tier system from 2 December 2020, but employers also need to keep an eye on more minor changes to guidance, summarised below.

CJRS

Changes to the Coronavirus Job Retention Scheme guidance following the extension of the scheme at the beginning of November (see here) include:

• On 13 November 2020 the Treasury published its Direction formally extending the Coronavirus Job Retention Scheme from 1 November 2020 until 31 March 2021 and setting out the conditions for claims up to 31 January 2021.  A further direction will be needed in respect of February and March, reflecting the outcome of the Government's planned review of the level of employer contribution.
• The guidance covering holiday has been amended to expressly provide that an employer can only place employees on furlough if coronavirus is affecting its operations and should not place employees on furlough just because they are going to be on paid leave or the employer usually does less business over the festive period.
• The guidance now makes clear that employers do not need to be facing a wider reduction in demand or be closed to be eligible to claim furlough for employees who are clinically extremely vulnerable or at the highest risk of severe illness from coronavirus.
• A new document sets out the deadlines for claiming in respect of each calendar month (as specified in the Treasury Direction) - the first deadline for November claims is 14 December.  Note that November is the last month for which furlough claims can be made in respect of employees serving notice of termination.
• Details have been added to the guidance as to what might amount to a reasonable excuse for an employer's late submission of a claim. These include the death of a partner or close relative, a serious life-threatening illness, computer failure and service issues with HMRC's online portal. Although not expressly stated, the same grounds are likely to be relevant in considering late applications to amend a claim.  The guidance now provides that employers must contact HMRC first to ask about submitting a late claim.
• The guidance also now sets out the claim band ranges that will be used when HMRC publish employer claim information, and confirm that this information will start to be published from February 2021 covering claims for periods starting on or after 1 December 2020.  Also from February, HMRC will include details of claims made for furloughed employees, for claim periods starting on or after 1 December 2020, in their Personal Tax Account on GOV.UK (to facilitate employees in checking whether a fraudulent claim has been made in respect of them).
• There are still discrepancies between the employee guidance, which continues to state that a furlough claim can be made for an employee who is also on statutory maternity leave and pay (to cover contractually enhanced maternity pay) but not for employees receiving Maternity Allowance, and the amended employer guidance.  The amendments have confused the issue, seemingly suggesting that maternity leave always has to be ended to place an employee on furlough (even where there are receiving statutory maternity pay rather than Maternity Allowance), but this is probably an error.  Employers may wish to clarify this with HMRC if relevant.

Health and safety guidance for employers

• Under the new tiers, the advice for clinically extremely vulnerable individuals is to work from home if possible, either in their existing or an alternative role, but they can attend work if this is not possible - this now applies in Tier 3 as well as the lower tiers.  The Government will only advise individuals to shield in the very worst affected areas within Tier 3 and only for a limited period of time; as before, individuals who receive written advice to shield will be entitled to statutory sick pay.
• The Government's Winter Plan (para 63) notes SAGE advice that typically over one third of contacts are made at work, that these are often of long duration and highly clustered and that homeworking can have a significant effect on reducing transmission if all those who can work from home do so. The Plan encourages employers to enable a greater degree of home working and is clear that anyone who can work from home should do so, although it also recognises that there are specific reasons why attendance in the workplace may be needed, including mental health issues or concerns and/or a need to work on-site physically.
• The Working safely guidance notes have been updated with updated advice on ventilation, face coverings, staff canteens and mental health considerations. The threshold for contacting the local PHE health protection team to report a suspected outbreak has been raised from two to five cases of Covid-19 associated with the workplace within 14 days.
• Public Health England, the HSE and the Faculty of Occupational medicine issued a consensus statement on the best approach to reducing risk for workers including those from ethnic minority groups.  This recommended following existing guidance to mitigate the risks for all workers, rather than solely targeting measures at ethnic minority groups. Individual discussions with those at greater risk should take place as part of a wider workplace risk management strategy.
• Medical research has suggested that environmental factors including low temperatures, low air exchange rates and metal surfaces increase the risk of transmission of Covid-19, and that this should be factored into employer risk assessments where relevant.

International travel

• Guidance and regulations have been published on a new exemption from the requirement to self-isolate on travelling from a country outside of the UK's travel corridor.  The Business Jobs and Investment Exemption applies to a senior executive (ie, someone who is a multinational, returning, or international executive, as defined) who is undertaking work with a 'significant economic benefit' to the UK (ie, more than a 50% chance of creating or preserving at least 50 UK based jobs or resulting in the purchase of goods or services from certain UK-based companies).  The exemption will only cover activities which cannot be done remotely or by someone else not self-isolating.
• On 11 December it was announced that from Monday 14 December, the required period of quarantine following international travel, and for contacts of someone who has tested positive, will be reduced from 14 days to 10 days.
• From 15 December, the Test to Release scheme will enable those arriving in the UK to choose to pay for a private Covid-19 test no earlier than 5 full days after leaving a destination not on the travel corridor list; if the result is negative, the individual can stop self-isolating.

Other 

• Regulations have been made extending the temporary provisions on calculating a week's pay for statutory notice and redundancy pay purposes (to avoid disadvantaging an employee who has been furloughed on reduced pay during the calculation reference period) to apply until the end of the extended CJRS on 31 March 2021 (rather than ending on 31 October 2020).
• Regulations have been made to provide that coronavirus tests provided by, or on behalf of, an employer between 8 December 2020 and 5 April 2021 (inclusive) are not taxable benefits in kind.
• HMRC has issued guidance on the penalties that it might charge where an income tax charge has not been notified regarding overpayments made under the CJRS (and certain other financial support schemes).
• The Information Commissioner's Office has updated its guide on data protection issues associated with testing for Covid-19.
• Wrongful trading liability for directors has been suspended from 26 November 2020 to 30 April 2021;  this leaves a gap between 1 October and 25 November when liability was not suspended.
• The Government is consulting on options to reform post-termination non-compete clauses in contracts of employment as part of the effort to support economic recovery post- pandemic - see our blog post here for further details. The impact of the pandemic on the number of hours employers can offer to employees is also the motivation for a second consultation: views are sought on extending the ban on exclusivity clauses in employment contracts (which currently applies to zero hours employees) to cover contracts where workers' guaranteed weekly income is less than the Lower Earnings Limit.
• The DWP has added a new section to its guidance note, Disability Confident: guide for line managers on employing people with a disability or health condition to cover the challenges presented by the pandemic.
• The UK mass roll-out of the Pfizer-BioNTech vaccine has begun and the Government has published the priority groups for vaccination here. Some employers are starting to think through what their vaccination policy should be once a vaccine is commercially available (although the roll-out details make clear this is unlikely to be for some time). Please do get in touch with Tim Leaver or your usual HSF contact if you would like to discuss this issue further.