Following the Prime Minister’s announcement on Monday of the removal of most COVID-related legal restrictions, further guidance has been provided as to what this means in practice. Sector specific guidance is being released over the coming days for sectors which are high risk such as social care, healthcare and prisons. There will also be further general guidance issued on or before 1 April when some of the points below will be relaxed further.
The changes have been made now that winter is coming to an end and it has become clear that the Omicron variant is substantially less likely to result in critical illness compared to other previous variants. The government expressly reserves the right to increase restrictions again should future variants show themselves to be more serious than Omicron, so it is possible that further restrictions could be re-imposed in the future. For now, however, the guidance confirms that:
From 24 February:
- The legal requirement to self-isolate following a positive test has been removed. Instead the government has provided guidance which confirms that all adults and children who test positive for COVID are advised to stay at home and avoid contact with other people. After five days those individuals can take a lateral flow test followed by another the following day and if both are negative they can return to work. This guidance in effect replicates the previously legally mandated requirements. Given this guidance it is likely that employers will need to continue following this notwithstanding that it is no longer a legal requirement. Staff will expect employers to follow this guidance and may well take matters into their own hands and refuse to attend work if they test positive. We understand that this guidance will change from 1 April (see below) and as such our view would be that unless there is a compelling reason not to, employers should comply with this for a little while longer.
- Employees will no longer be legally obliged to inform their employers when they are required to self-isolate. You can still request this information from your staff but in practice there is likely to be little you can do if they refuse to inform you or say that they are negative when they are in fact positive as you are unlikely to be able to prove otherwise.
- Contact tracing will end and contact tracing teams disbanded. Local health teams may still use contact tracing for specific instances but not as a matter of routine.
- Close contacts of someone who has tested positive are no longer required to self-isolate but should continue to take extra care when dealing with others. Depending on the nature of your workforce and the number of high risk individuals you have working for you, you may wish to require staff to attend the workplace if they are a close contact. You should bear in mind, however, the risk of an outbreak and the guidance to self-isolate above, is it better to have people who are close contacts self-isolate than risk an outbreak in the workplace which requires a significant number of your staff to isolate having tested positive?
From 24 March:
- The COVID provisions within the Statutory Sick Pay (SSP) regulations will end. These regulations entitled those who tested positive for COVID to receive SSP from day one after testing positive. This will now revert to its pre-COVID rules whereby the first three days of absence are considered ‘waiting days’ and entitle the employee to zero pay. If the employee is off work for more than three days, they will be entitled to receive SSP in the normal way. The entitlement for employers to recover SSP from HMRC will also come to an end.
From 1 April:
- Further guidance will be provided setting out the steps those who test positive for COVID should take. It is anticipated that the guidance to self-isolate will be revoked and replaced with the requirement to take sensible steps to protect others but to otherwise return to work as you would for a cold or other relatively minor illness.
- The government will no longer provide free universal testing for the general public. Some high risk groups and social care staff will still be entitled to receive free tests but for everyone else tests will be available to purchase.
- NHS COVID passes will not be needed domestically.
- The requirement to have a COVID-19 risk assessment within your health and safety risk assessments will be removed, although in practice many employers will continue to retain these for the time being, particularly if you have high risk staff.
- The existing ‘work safely’ guidance will be revoked and replaced with new guidance. The government will continue to promote and support good ventilation but it is likely that most other guidance will be revoked.
The plan appears to head very much towards a return to pre-COVID ‘normality’ by 1 April unless another variant or complication arises. Employers should now start consulting with staff about these changes and how they will impact upon everyone.
It is particularly important to note that employers remain responsible for taking reasonable steps to protect the health and wellbeing of their staff and in a COVID context this is particularly relevant for those who are at high risk. However, it is also the case that employers want to return to ‘normal’ as soon as possible. The question employers will have to grapple with is when to remove the COVID protections within their workplace if not from 1 April?
In one example we are assisting with an employee’s husband who is currently undergoing chemotherapy following a cancer diagnosis. The employer very much wishes to support the employee and understands her concerns for his wellbeing, however his cancer treatment is scheduled to last for many weeks or possibly months. The employer is grappling with whether to retain restrictions for all staff in the workplace to protect her or to return to normal but make specific exceptions to support the employee?
It is a very challenging situation with no definitively right or wrong answer which is why it is so important that employers start planning this now, speaking with their staff and seeking advice where appropriate.
If these changes affect you or your business please contact our Employment Team on 0345 646 0406 or fill in our online enquiry form and a member of our Team will be in touch.