Vicky Anderson
April 10th 2022
- The legal requirement to self-isolate due to coronavirus ended in England on 24 February 2022. Instead, people who test positive are now advised to stay at home and avoid contact with vulnerable people.
- On day five, people are advised to take a lateral flow test (LFT), followed by another the next day. If both are negative, and if the person has no symptoms, they can safely return to their normal working routine on day six, although taking especial care around crowded internal spaces, and around immuno-compromised people. This will remain in place in England until April 2022.
- Additionally, from 24 March 2022, entitlement to statutory sick pay (SSP) on the basis that a worker is self-isolating due to coronavirus (but is otherwise well enough to work) ends, so that an employee will be entitled to SSP only if they are unwell and not able to work (not if they are well but staying at home in line with government advice). Since 24 March, “day one sick pay” has ended, and workers with Covid-19 will not begin receiving SSP until their fourth day off work, in line with the SSP rules that were in place prior to the pandemic.
- From 1 April, free coronavirus testing is no longer be available to the vast majority of the public in England. Employers will need to consider whether or not they wish to purchase coronavirus tests for their staff to use where they are mandating testing the workplace, or strongly encouraging this. However, paying for regular asymptomatic testing is unlikely to be feasible for many small businesses.
- While there is no longer a legal requirement to self-isolate, government guidanceadvises that people with coronavirus should stay at home and avoid contact with others. Those who have been in close contact with an infected person are advised to work at home if possible and to limit close contact with people outside their household.
- In response to these legislative changes and changes in government guidance, employers should decide on their own approach to employees who test positive with coronavirus, or who know they have been a close contact of someone with coronavirus but who are not themselves ill. Employers must ensure that they continue to comply with their health and safety duties and employment law responsibilities to employees.
- Although the statutory requirement for employees to tell their employer if they have Covid-19, or its symptoms, has no longer applied since 24 February, employers can still require their staff to inform them under their own policies, so that employers can invoke their own measures in response.
- If employees are able to work from home, asking them to do so is likely to be appropriate if they have tested positive for coronavirus, have coronavirus symptoms or have been a close contact of a positive case.
- Where employees cannot work from home, an employer may decide on a policy of requiring staff who have tested positive for coronavirus or have coronavirus symptoms to stay away from the workplace, to avoid the spread of coronavirus. If it takes this approach, arguably the employer must pay employees their normal salary in full if they are well, are not self-certifying as incapacitated and would otherwise be ready and willing to attend work, rather than reduced sick pay, or nil pay; as this is at the employer’s instruction. Although, there is an obvious cost to this, which will be particularly challenging for small businesses, employers should also bear in mind the cost and disruption, as well as employee relations and reputational issues where there is an outbreak of coronavirus in the workplace, that could otherwise be mitigated through the employer’s actions; as well as employers’ duty of care towards staff and others in the workplace under health and safety legislation.
- Additionally, employees may refuse to attend the workplace if they believe their employer has not taken reasonable steps to protect their safety. Whether or not an employee’s refusal to attend work would be reasonable in this circumstance, will depend on the specific facts.
Risk assessments
- Although employers in England are no longer required to explicitly consider Covid-19 in their risk assessments from 1 April 2022, employers should still consider it as part of their generic risk assessment of biological hazards in the workplace. Indeed, other than for fire safety, it is rare for a risk to warrant its own risk assessment, unless the employee is working in an environment where a particular hazard is high, such as an employee that does a large amount of manual handling.
- In criminal law, the Health and Safety at Work Act 1974 and regulations made under it, require employers to protect their staff and others from significant and reasonably foreseeable harm and requires that such risks are assessed. Control measures for Covid-19 may include not permitting staff to attend the workplace when they have tested positive for Covid-19, as well as ensuring good ventilation and hygiene in the workplace, or requiring staff to wear face coverings in crowded and poorly ventilated spaces.