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COVID – 19 – managing the workplace safely

The government’s COVID-19 announcement yesterday (21 February 2022) confirmed the end of all COVID-19 restrictions which will gradually take effect between now and 1 April. It will mean that moving forward the responsibility for how to live with the virus will be placed on individuals rather than the government and their interventions that we have all been familiar with over these last two years.

In this article, we summarise the changes and consider what this will mean for employers and employees to ensure that we are all taking responsibility for managing COVID-19 safely in our place of work.

From 21 February

  • Guidance for staff in most education and childcare settings to carry out twice weekly asymptomatic testing will be removed.

From Thursday 24 February:

  1. Routine contact tracing will end.
  2. Removing the legal requirement to self-isolate following a positive COVID test. Instead, it is government advice to stay at home and avoid contact with other people for at least 5 full days and then continue to follow the guidance until having received 2 negative lateral flow tests.
  3. Employees will no longer be legally required to notify their employer when they are requiring to self-isolate.
  4. Unvaccinated individuals who are close contacts of somebody who has tested positive will not be legally required to self-isolate.
  5. Fully vaccinated, and under 18’s who are close contacts of somebody who has tested positive will not be asked to test daily for 7 days following their contact.
  6. Self-isolation support payments and national funding for practical support will end (for people who have been instructed to self-isolate before the 24 February will be able to still claim support payments within 42 days.

From Thursday 24 March:

  • Specific provisions relating to statutory sick pay will end.
  • Employment and support allowance regulations will end.

From Friday 1 April:

  • The legal requirement for every employer (except for those who specifically work with COVID-19) to explicitly consider COVID-19 in their risk assessments will be removed. Businesses must instead take responsibility for implementing mitigations that are appropriate to their circumstances.
  • Guidance to the public and businesses will be consolidated in line with public health advice and set out the ongoing steps people with COVID-19 should take to minimse contact with other people. This will replace the current ‘working safely’ that is in place for every sector.
  • The social care staff will continue to have access symptomatic testing.
  • There will no longer be free testing for the general public.
  • Limited testing will take place for certain at risks groups, details of who this will cover is yet to be published.
  • The Government will no longer require that certain venues use the NHS COVID Pass.
  • The NHS Pass will remain available for a limited period to support the use of certification in other parts of the UK.
  • The NHS Pass will continue to be used for international travel and recovery status for overseas destinations that require it.

Safe working practices

Even though there will be no longer any legal responsibility on an individual (or employer) in how the virus is managed, the government will continue to encourage and advise people to continue with adopting safe practices. The government’s advice moving forward will continue to be:

  • To get vaccinated.
  • Let fresh air in if you are meeting indoors or to meet outside.
  • Wear face coverings in crowded and enclosed spaces especially when coming into contact with people you don’t usually meet or when transmission levels are high.
  • Try to stay at home when unwell.
  • Testing when you have developed COVID-19 symptoms, or stay at home and avoid contact with other people if you have tested positive.
  • Washing your hands and following advice to ‘catch it, bin it, kill it’.

Health and Social Care

  • Following the recent consultation seeking views on revoking the Health and Social Care Act 2008 (Regulated activities) (Amendment) (Coronavirus) Regulations 2021 (which require evidence of vaccination status), the government will publish its response very shortly and it is expected that the regulations will be revoked before their expected implementation date of 1 April 2022.
  • For the NHS, and those operating in care homes or provide care services in the home, providing access to free PPE will continue until the end of March 2023 (or until the IPC guidance on PPE for COVID is amended or superseded, whichever is sooner)

What will this mean for employers and employees?

General legal obligations

Under health and safety laws, employers have a legal duty to protect the health, safety, and welfare of everyone in the workplace and to make appropriate arrangements to ensure this. This duty does not just cover employees but is also covers those who might be affected by the business, such as visitors, contractors, agency workers and customers. Health and safety laws also makes any failure to take all reasonably practicable steps to reduce workplace risks to their lowest level a criminal offence.

Additionally, there are also legal duties imposed on employers to consult with the workforce on health and safety matters and places a legal duty on employees to co-operate with their employee as is reasonably necessary.

So, whilst there will no longer be legal duties placed on employers and employees in England, it will not automatically mean employers can immediately remove all COVID-19 measures. Living with Covid is about living with it safely, and under H&S and employment laws, it will still require employers to take all reasonably practicable steps to reduce workplace risks to the lowest level. It may mean that there may still be a need for some measures remaining according to the circumstances of each business. What steps an employer will need to take will be different for each employer having reviewed workplace risks in line with the legal obligations to make a suitable and sufficient assessment of risks, based on an updated risk assessment.

Another consideration is of course if an employee refuses work (or attend) because they reasonably fear that by attending the workplace would be a serious and imminent threat, not just for themselves, but for others whom they live with. An employee has the right to not suffer a detriment such as disciplinary action or dismissal for exercising their right. Employers must therefore be mindful of not just employees who may be clinically vulnerable to the virus, but also of any persons that may be at home.

Taking all of this into consideration, it will be for an employer to determine appropriate workplace practices and policies that help to mitigate against the risk of COVID-19. Ensuring this is undertaken in consultation with the workforce will have better results at ensuring employee buy-in to any new restrictions you need to implement. Developing a COVID-19 safe workplace policy may be helpful to set out in writing expectations on both sides.

Key questions for employers to consider

In developing working practices and any new COVID policy, there are several key areas that will need to be assessed:

  • How do we protect clinically vulnerable employees from those who may be at work whilst infected – asymptomatic or symptomatic?
  • Will we see higher absenteeism? Whilst the employee who has turned up for work with COVID may not have symptoms, the person they may transmit it to, may end up having them and potentially becoming seriously ill (or transmitting it to somebody at home who is clinically vulnerable). What can we do to minimise this?
  • How will employees feel being at work, knowing that a colleague could be attending who has tested positive?
  • Will employers see an increase in tribunal claims because somebody has reasonably refused to attend work because they have reasonably believed they are in serious and imminent danger? What other employment practices need to be reviewed to mitigate against tribunal claims?

These are all genuine concerns that employers must take seriously. Given the above challenges, this doesn’t mean to say that an employer cannot set their own policies that are reasonable and proportionate to their business. Such as, requiring employees to stay at home if they have symptoms, or to get tested (but the employer would need to provide the test). There would clearly be strong health and safety grounds for doing so.

Our 7-point plan we published last week provides an outline of how to go about ensuring you have a safe place of work moving forward.

The latest government publication provides detail behind the changes discussed above.

Your COVID-19 safe working policy

Further to the Governments developments with COVID restrictions, we have created a policy which is designed to help you manage working safely with Coronavirus.

This policy template is suitable for all businesses, except for those operating in the health and social care sector and can be downloaded here.

Further information

For more information about the changes discussed in this article, or to speak to a member of our team, please Contact Us

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