Covid caution in the workplace: is it really time to say goodbye?

Under the UK Government’s ‘living with Covid’ plans, all legal Covid restrictions on the public in England, including a legal obligation to self-isolate, ended on 24 February. Wales is set to follow suit by the end of March. But guidance is likely to remain in place recommending people to self-isolate who have Covid symptoms or test positive.

Significantly, from 24 March the Covid amendments made to the statutory sick pay (SSP) regulations (for England, Scotland and Wales) will also be removed and revert to pre-pandemic rules. This means SSP will no longer be automatically payable to those who have Covid, or Covid symptoms, or recommended to self-isolate, but are otherwise fit to work. There will also be a return of the 4-day waiting period before SSP becomes payable, meaning employers do not have to pay SSP for employees off work with Covid until their 4^th day of illness. UK Government support for employers with fewer than 250 employees under the SSP Rebate Scheme, which supported up to 2 weeks SSP payments for Covid-related absences, will also end on 17 March.  From 1 April, the statutory requirement on employers to specifically consider Covid safety measures in risk assessments will also end.

The consequences of removing the Covid SSP protections

The removal of any legal obligation to self-isolate and special SSP mechanisms in relation to Covid will shift the burden back on to employers to ensure they are able to run a safe environment for their staff. In the government paper ‘Covid-19 Response: Living with Covid-19’ it was written that the intention behind the removal of the requirement to consider Covid in their health and safety risk assessments was to “empower businesses to take responsibility for implementing mitigations that are appropriate for their circumstances.”

However, the return to pre-Covid SSP regulations will fall with the backdrop of a rapidly worsening cost of living crisis, particularly for the lowest paid employees who are typically paid SSP only for sickness absences.  Such employees who have Covid or have close contact with a positive case will be forced to make the choice between attending work and risk infecting their colleagues and the wider public, or follow self-isolation guidance but lose out on several days’ worth of income.  Even those employees who are unwell with Covid and are highly infectious may still feel no choice but to attend work as they cannot afford the loss of pay during the “waiting days” before payments of SSP commence.

Covid cases are now rising again, and employers will have to consider the disconnect between the removal of additional SSP provisions from 24 March, and their health and safety obligations to ensure the workplace is a safe environment for all employees, which continues although the pandemic as we have known is moving into a different phase.  In absence of any support from employers over and above the legal minimum SSP, many lower paid employees will feel significant pressure to attend work despite posing a risk of transmitting Covid.

Employer considerations

With the UK Government stepping away from directly managing Covid risks in society, employers are now faced with the task of guiding their employees as to best practice.  For businesses in which working from home is possible, an obvious solution is to require homeworking for what would have been the legal self-isolation period during the pandemic, and to continue to pay those employees as normal.  However, where WFH is not possible, employers will need to make decisions about:

• whether they will continue to offer testing facilities to their employees, which they would now need to fund as free lateral flow tests, other than for over 75s and highly vulnerable persons, end on 1 April in England;
• whether they will be advising their employees to stay away from work when displaying Covid-like symptoms or when they have been in contact with those testing positive, and create a workplace self-isolation policy although no legal obligation to self-isolate will exist;
• whether they will continue to offer enhanced sick-pay provisions for Covid positive employees from day one of illness, despite the removal of the legal requirement to pay SSP for the first 3 days of illness;
• whether they will as a policy send home employees who are ready, willing, able and fit to work who have Covid or had close contact with Covid, on ‘medical suspension’, which potentially would require them to pay that individual full pay under their contract of employment;
• if persons who are potentially transmitting Covid are permitted to attend work, what added protections will be in place for the public and colleagues who are particularly vulnerable to Covid, such as older persons, or those who are immune-suppressed, and for employees who are in their third trimester of pregnancy. Will there be a legal duty to make reasonable adjustments to protect disabled employees in these circumstances?
• whether they intend to maintain the added protections put in place in their workspaces, e.g. social distancing, ventilation, mask wearing, added cleaning etc., despite the removal of the legal obligation to do so?; and
• will Covid be treated like other infectious viruses, such as flu, or will Covid continue to be treated as a special case with specific safety measures and sick pay provisions in place? Will employers establish a general infectious disease policy to cover Covid, and other potential viruses which may emerge in the future?

How we can help

The above are just a handful of considerations that it will now be the employer’s responsibility to consider as we move out of the pandemic. We advise that policies will need to be updated in line with the change to ensure best practice and to avoid any confusion among workforces which could lead to aggravation and potential claims. It will be sensible for employers to update their policies and guidelines in line with these additional responsibilities.

Whether you need advice on the suitability of your current policies, or on your responsibilities as an employer in the wake of the removal of Covid regulations, our multidisciplinary team of employment lawyers can help make sure you’re fair, compliant and efficient.