Covid-19: implications for employers in England of Government's Living with Covid Plan

Update: On 1 April 2022 the UK Health Security Agency published new guidance for employers in England, replacing the previous "Working safely" guidance notes (no longer available).  As anticipated, Reducing the spread of respiratory infections, including COVID-19, in the workplace sets out how Covid-19 is now to be treated in the same way as flu and other respiratory infections.  The guidance advises that employers:

• be aware of the possible symptoms of respiratory infections (a list is provided) and "may wish to consider how best to support and enable" any member of staff with such symptoms to follow the relevant guidance for people with symptoms "as far as possible".  That guidance advises that:
  • individuals who have symptoms (but have not tested for Covid-19) should try to stay at home and avoid contact with other people if and while they have a high temperature or feel unwell; this includes trying to work from home if possible and, if not, individuals are advised to "talk to your employer about options available to you".  The same advice is given to individuals who have tested positive for Covid-19 without symptoms, for 5 days after the day of the test;
  • individuals who have tested positive or have symptoms but who have to leave their home should take extra precautions, including wearing a well-fitting face covering made with multiple layers or a surgical face mask and avoiding crowded enclosed spaces;
  • household or overnight contacts of someone who has tested positive (but who do not have symptoms) are not advised to work from home, but are advised to avoid contact with the extremely vulnerable and to limit close contact with other people, especially in crowded, enclosed or poorly ventilated spaces;
• take action to reduce the spread of respiratory infections, by encouraging and enabling vaccination, ensuring good ventilation (see HSE guidance here), cleaning, and promoting and applying these measures "more vigorously" if there is an outbreak in the workplace;
• may wish to consider the needs of employees at greater risk from Covid-19;
• may choose to continue to explicitly cover Covid-19 in their health and safety risk assessments even though this is no longer a requirement (save for employers working with Covid-19).  Employers should continue to comply with the statutory requirements for cleaning, ventilation and welfare facilities to control occupational health and safety risks, and their duty to consult with their employees or their representatives on health and safety matters. Health and Safety Executive guidance on how to keep people safe and healthy at work is available here.

Similar advice is given in the new guidance for individuals, Living safely with respiratory infections, including COVID-19.

Employers will now need to determine and communicate their policy on testing, attending work and sick leave/pay for individuals who test positive, or who have symptoms of respiratory infection but are not too ill to work, and either wish to work or to self-isolate, as well as household contacts of positive cases.  They will also need to decide what Covid-safe measures should be kept in place and give particular consideration to staff at higher risk of serious illness, for example due to a weakened immune system, or who live with someone at higher risk.  As before, the use and retention of any health or vaccination data will need to comply with data protection laws.  Please do get in touch with your usual HSF contact if you would like to discuss these issues further.

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Update: On 24 February UKHSA published the promised guidance for those testing positive with Covid-19 and their contacts, to apply until 1 April (when updated guidance will be available) - see here. As expected, this guidance states that individuals who test positive should self-isolate as before (for 10 days, or until two consecutive daily lateral flow tests taken from day 5 are negative) and therefore should not attend work.  Those who live with or have stayed overnight in the household of someone testing positive are advised to work from home if they are able to for the 10 day period and to be alert for symptoms;  other contacts are not advised to work from home but just to carefully follow the general guidance.  

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The Government's Living with Covid Plan announced yesterday (21 February 2022) confirms the following imminent changes to Covid-19 related rules relevant to all employers:

From 24 February 2022:

• those testing positive are no longer legally required to self-isolate;  however, self-isolation is still advised for at least 5 full days and afterwards until there have been 2 negative test results on consecutive days
• routine contact tracing will end and contacts will no longer be required to self-isolate or take daily tests; instead guidance will set out precautions advised for those who live in or have stayed overnight in the same household as a positive case in order to reduce risk to other people;  other contacts will be advised to take extra care in following general guidance for the public on safer behaviours
• workers will no longer be legally obliged to tell their employers when they are required to self-isolate.

From 24 March 2022:

• the COVID-19 adjustments to Statutory Sick Pay provisions will end - Statutory Sick Pay will no longer be payable from day 1 if people are unable to work because they are sick or self-isolating due to COVID-19 and the small employer rebate will end. Pre-pandemic SSP rules will apply.

From 1 April 2022:

• the Government will no longer provide free universal symptomatic and asymptomatic testing for the general public in England
• the Government will remove the health and safety requirement for every employer to explicitly consider COVID-19 in their risk assessment
• new guidance will replace the Working Safely guidance and set out the ongoing steps that people with COVID-19 should take to minimise contact with other people. "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 consult with employers and businesses to ensure guidance continues to support them to manage the risk of COVID-19 in workplaces."  There will be a continued emphasis on employers and businesses identifying poorly ventilated spaces and taking steps to improve fresh air flow. The Government is carrying out further ventilation research and has commissioned a report on how the built environment could be made more infection resilient, to be published this May.

Employers will need urgently to consider their approach in light of the staged changes.  Self-isolation on testing positive remains advised (but not legally required) until 1 April, whereas contacts of positive tests will not be required to stay at home (regardless of vaccination status) with the possible exception of household contacts, yet to be confirmed. However, SSP will revert to being available only after 3 days and for incapacity, a week prior to the end of the guidance for positive cases to self-isolate.  Employers will need to consider, in light of their particular business and updated guidance as it becomes available:

• whether and for how long to continue asking staff coming into the workplace to perform lateral flow tests (bearing in mind free tests may now become more difficult to obtain and will be unavailable from 1 April)
• whether and for how long to continue to ask staff to self-isolate if testing positive/symptomatic or a close contact of someone testing positive/symptomatic
• whether and how to adjust company sick pay eligibility (subject to contractual considerations)
• what updates to make to their health and safety risk assessment and health and safety measures in the workplace
• how to respond to individuals who refuse to return and/or request remote/flexible work, given that some may see the changes as increasing the risks of returning to the workplace.

If you would like to discuss the impact of this announcement for your business, please do not hesitate to get in touch with your usual HSF contact.