Easier said than done – Implications for employers of UK Government's Living with Covid plan

The speed of unwinding Covid workplace rules leaves employers to make some crucial judgement calls

Changing rules in theory is relatively simple but, as all employers can attest, the demons of unforeseen consequences emerge when policies are applied. As such, companies could be forgiven some trepidation as the UK Government’s "Living with Covid" plan was announced on 21 February, confirming 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 five full days and afterwards until there have been two 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 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:

• Covid-19 adjustments to Statutory Sick Pay (SSP) provisions will end – Statutory Sick Pay will no longer be payable from day one 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 rules on sick pay 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 resilient to infection, 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 three 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 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.

Amid sweeping changes in working patterns and attitudes to remote working, employers face an unenviable list of judgement calls to make in a short space of time. The reforms are also not without controversy, with employer groups and unions having lobbied for continued state support for free testing and enhancements to the statutory sick pay regime for small employers. In contrast, the Scottish Government this week indicated that free testing would remain in place, alongside the requirement to isolate following a positive test.

There will also be concerns about potential liability for employers as they review policies ahead of more detailed government guidance, which is expected by April. 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.

This article first appeared in our employment blog, Employment Notes