Living with COVID-19: Key considerations for employers

On 21 February 2022 the Government announced its Living with COVID plan. The future response is aimed at enabling the country to manage COVID-19 like any other respiratory illness, while retaining the ability to respond if a new, more dangerous variant emerges. The plan highlights advice from SAGE that there is still considerable uncertainty about the path the pandemic will take. However, for now, the final domestic restrictions will be removed.

Below are the key changes employers need to be aware of:

• From 24 February 2022 - Mandatory self-isolation for all positive COVID-19 cases (irrespective of vaccination status) will end along with the guidance for fully vaccinated close contacts to take lateral flow tests for 7 days. Routine contact tracing will also end. Importantly, the obligation for workers to tell their employers when they are required to self-isolate will end, together with the duty on employers not to allow a self-isolating worker to attend a workplace outside of their home. New guidance will instead advise people who test positive to stay at home and avoid contact with other people. It is expected that the new guidance will lapse on 1 April 2022 when free testing will be scaled back.
• From 24 March 2022 - Statutory Sick Pay (SSP) will no longer be payable from day 1 if individuals are unable to work because they are unwell or self-isolating due to COVID-19. The pre-pandemic SSP rules will apply.
• From 1 April 2022 - The Government will replace the existing 'Working Safely during Coronavirus' guidance with new public health guidance and will remove the requirement for employers to explicitly consider COVID-19 in their health and safety risk assessments. The Government continues to advise employers to identify poorly ventilated spaces and take steps to improve fresh air flow. From 1 April, the Government will also no longer provide free universal symptomatic and asymptomatic testing to the public.

After almost two years of living with restrictions and adapting to the evolving COVID-19 climate, how should employers plan for this next stage. Organisations now need to consider the right approach and policy for their business. Here are our five key considerations for employers:

1. Health and safety in the workplace - The end of the legal obligation to self-isolate does not prevent employers from having their own rules on workplace attendance. Employers still have a legal duty to take reasonable steps to protect the health and safety of their workforce. With the Government stated intention for businesses 'to take responsibility for implementing mitigations that are appropriate for their circumstances,' organisations now need to decide what their approach to self-isolation will be. We are awaiting new guidance; however, it is expected that this will recommend that those who test positive should stay at home and avoid contact with others. So, organisations need to make clear decisions around workplace attendance and importantly communicate this clearly and as early as possible to staff, and in particular managers. Typically, this would be via a policy which may, for example, state that individuals who test positive and/ or who are displaying COVID-19 symptoms are required to work from home for a period of time. Employers should also be prepared for questions from employees who elect to self-isolate, in particular around sick pay entitlements.

2. Protecting vulnerable colleagues - Further vaccinations have been recommended for those who are most vulnerable to COVID-19 and further guidance will be produced for those whose immune system means they are at higher risk of serious illness despite vaccination. Employee concerns and the dangers of COVID-19 must still be considered within the context of any personal vulnerabilities; measures that may be sufficient to reduce the danger for most employees may not be adequate for others. For employers, this will continue to involve consideration of individual risks in relation to clinically vulnerable staff or employees who live with clinically vulnerable people, particularly if COVID-19 positive employees attend work.

3. Mental health and anxiety - It is important to remember that an employer's duties regarding health and safety require employers to consider employee mental wellbeing. The pandemic has taken a huge toll on mental health, with employees perhaps suffering from ongoing stress, anxiety, depression or other health concerns. Just because the Government has chosen to remove all remaining restrictions, will not necessarily mean that your employees will be able to adapt their personal approach and apprehensions about COVID-19 so quickly and perhaps need some time to adjust. It is important that employers continue to acknowledge and respond to employee mental health concerns and keep an open dialogue with staff about wellbeing and safety. Employers should be mindful that certain mental impairments could constitute a disability under the Equality Act and will trigger a duty to make reasonable adjustments to an employee's duties or to the workplace to alleviate any disadvantage. Managers should also be trained to spot signs and support employee wellbeing, particularly if organisations are moving towards a hybrid working model.

4. Recording vaccination data - Employers who have previously recorded vaccination or other health data and provided the reasons for doing so in an employee privacy notice, will now need to review their reasons for recording this data. With the changing Government approach employers will need to consider whether they need or want to continue to capture this health data and whether it is still necessary or proportionate to do so.

5. Capture the gains and remember that this isn't necessarily the end - Since the onset of the pandemic many people's working lives have moved to remote ways of carrying out their role. This has fuelled many positive changes over the past two years; flexibility, efficiency, wellbeing, accommodating personal commitments and improved access to employment opportunities for disabled colleagues to name a few. Employers should be clear about these positives and aim to harness these going forward. Employers also need to be mindful that we live in an ever-evolving situation that will require ongoing adaptability as new variants perhaps emerge; so organisations should maintain their contingency capabilities to deal with a range of scenarios.

The changes outlined above will apply only to England. The Devolved Administrations of Scotland, Wales and Northern Ireland will set out their own approach to managing this transition.

If you would like any further information on anything covered in this update, please do not hesitate to contact [email protected].