Coronavirus Hub

With almost all COVID-19 restrictions lifted or about to be lifted, we look at how employers should approach the return to the office.

Mandatory self-isolation for those testing positive for COVID-19 ended from 24 February 2022 and free testing will end from 1 April 2022. The test and trace £500 payment to those on low incomes has stopped and the extended SSP scheme finishes from 17 March 2022. Under that scheme employers who qualified could reclaim up to two weeks’ SSP paid to employees who had COVID-19 or were self-isolating. From 17 March employees with COVID-19 will not get SSP from Day 1 but will have to wait for Day 4.

But do these announcements relieve employers of all responsibility? No is the short answer. Employers have an obligation to keep their employees and visitors safe and so it would be irresponsible not to have rules in place ensuring workers do not come to work and spread the virus, particularly if they are working with older or vulnerable colleagues. Indeed, employers foolish enough not to have policies in place might face potential prosecution from the Health and Safety Executive if employees become seriously ill. There is still an obligation to carry out a risk assessment and the HSE website still recommends adequate ventilation, cleaning, and hand sanitising.

COVID-19 is still a reportable disease if illness or death is due to an ‘occupational exposure’ to coronavirus and although it would be difficult to pinpoint the exact infection point, this will not stop workers from alleging it was caught at work.

Suggested action plan

But what else should an employer do now that the law does not impose any kind of restriction? Health and safety in the workplace starts with personal responsibility and any policy should start with the fact that the best way for an employee to protect themselves against serious illness and death is by being vaccinated and boosted. However, there are those who cannot, for medical reasons, be vaccinated and as a result special care will need to be taken with them.

Equally, it would be unreasonable to expect an entire workplace to still wear masks and socially distance because a small minority refuse to be vaccinated.

Employees who believe that they are in serious and imminent danger in the workplace can refuse to come to work and dismissing them for refusing can lead to successful claims for automatic unfair dismissal, irrespective of their length of service (see for example, Preen v Coolink Ltd). But if they are fully vaccinated and boosted, is it really serious and imminent danger? This will of course depend on the next variants but certainly omicron is generally a very mild illness.

However, any employer who does not have in place a proper policy to deal with managing COVID-19 in the workplace, potentially faces claims of this kind from its employees. Imagine the scenario - a fellow employee is showing all the signs of COVID-19, cannot get a free test and won’t/can’t pay for one and there are no employer rules in place instructing employees to stay away from work in these circumstances or offering to pay them.

Policies will have to include what to do if a worker has symptoms – they should remain away from work until they have had a test which the employer will have to pay for. How long should they remain away for after testing positive? In the US the Centre for Disease Control recommends a five-day period as the science indicates that most transmissions occur in the first few days

The other big question is what the worker gets paid if they cannot work from home? There will be an argument that employers who do not adequately pay workers who test positive are not doing all they can to prevent them coming to work when positive, because they will lie as they cannot afford not to be paid.

However, as well as a carrot there should also be a stick. Policies should make it clear that anyone coming to work when positive will be committing gross misconduct and may be dismissed without notice.

However, employers will have to be alert to workers taking advantage and calling in to say they have COVID-19 for week off on full pay. Therefore control over the testing of employees will need to be considered – the policy should stipulate that provided they are able to provide a positive PCR test or undertake a lateral flow test in person, which the employer will pay for, then they will be paid. As many parents discovered leading up to school holidays, lateral flow tests done at home without supervision, were easy to manipulate with lemon juice to produce a positive result.

No doubt all those companies making millions from pre-and post-travel tests will now turn their attention to offering their services to employers and so now is the time for employers to make friends with their local testing site/provider and put together a policy with some simple rules for workers to follow:

• Get vaccinated
• Discuss any particular personal or family vulnerabilities with HR to see if adjustments need to or can be made.
• Open windows and make space when you can
• Wash your hands regularly and use the provided hand sanitiser
• If you have symptoms stay away from work, get tested at the employer’s expense
• Coming to work with COVID-19 symptoms is an act of gross misconduct
• If you test positive, work from home for five days and if you cannot work from home then irrespective of the employer’s sick pay policy, the employee will still be paid for up to five days (depending on whether this falls on a non-working day)