The latest COVID-19 development on 9 February raises the question of whether all COVID-19 restrictions will end early for England, including the requirement to self-isolate when positive.
At present, we are working to measures being relaxed when the Regulations expire on 24 March, however, it was announced yesterday that the requirement to self-isolate may end one month sooner. It is reported that the number of infection levels, hospitalisations and deaths continue to fall, which is a result of being further along in the vaccination programme. But what will this mean for employers and employees, especially those who are clinically vulnerable?
In this article, we share our insights on what to consider if the requirement to self isolate when positive ends and provide a ten-point plan to help SMEs in preparing for measures ending.
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. There are also legal duties imposed on employers to consult with the workforce on health and safety matters.
So, even if measures are no longer required under the Regulations in England, it will not automatically mean employers can immediately remove all COVID-19 restrictions. Infection levels will still require employers to take all reasonably practicable steps to reduce workplace risks to the lowest level and so there may still be a need for some measures remaining. What these will be, will be different for each workplace and in line with an employer’s legal obligation to make a suitable and sufficient assessment of risks, based on an updated risk assessment.
Another consideration is if an employee refuses work 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/worker has the right to not suffer a detriment (such as disciplinary action/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.
Removing the requirement to self-isolate when positive
If the requirement to self-isolate when testing positive for COVID-19 ends, this will bring many areas of consideration for employers, for instance:
- How do we protect clinically vulnerable employees from those who may be at work whilst infected?
- 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.
- If the person attending work transmits the virus to a colleague, but that colleague lives with somebody who is clinically vulnerable, this could lead to serious illness.
- 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?
These are all genuine concerns that employers must take seriously. Given the above challenges, it may be a reasonable management instruction for an employer to set a policy that requires employees to remain off sick when having tested positive for Covid-19 even if they have no symptoms (or work from home if it is an option).
So, whilst there would be no requirement to self-isolate by law anymore, this doesn’t mean to say that an employer cannot set their own policies that are reasonable and proportionate to their business. There would clearly be strong health and safety grounds for doing so.
Whilst we wait a definitive position on when self-isolating ends, here is our seven-point plan for preparing your business for the ending of COVID-19 Regulations:
1. Consider who in your workplace place may be clinically vulnerable
You will probably know already who in your workforce is considered clinically vulnerable from COVID-19 as you will already have needed to put in appropriate measures already to protect them. But it is worth just checking again that you have accounted everyone who are particularly high risk so you know who may need further protection moving forward.
2. Update your COVID-19 risk assessment
Be sure that it addresses how you mitigate risk to pregnant and clinically vulnerable employees/workers/third parties. The risk assessment must always be kept under regular review. You can download our free COVID-19 risk assessment template which is available via our Doc Shop.
3. Share your risk assessment and its findings with your employees
Apart from an employer’s legal obligation to consult employees on health and safety matters,
Engaging with your employees early and regularly will make your employees feel as though they have a say and are contributing to how their workplace may adapt. This will no doubt lead to higher engagement as well as gaining agreement with any necessary changes.
4. Discuss on an individual level with those who are vulnerable and at greater risk
Those who may have underlying medical conditions that make them clinically vulnerable to the virus, or pregnant employees, should be spoken with on an individual basis to listen to any concerns they may have, and seek their input for ideas on how their safety can be protected whilst at work.
5. Progress actions
There may be new actions identified through the risk assessment process, that may be specific to an individual because of their vulnerability to the virus. These adaptations could be temporary or permanent.
For example, you may allow a pregnant worker to continue working remotely through the remaining period of their pregnancy. Or for an employee who is clinically vulnerable, you may agree together for them to limit how much time is spent on-site and support hybrid working.
We also encourage that you begin to talk to your employees who are currently working from home about the arrangements for returning. For some businesses, it may be possible to continue allowing working from home, but for others, people may be needed back.
You may also wish to continue with social distancing setups in the office or the continuation of face coverings.
6. Confirm any changes to terms and conditions of employment in writing
Where you are agreeing on an individual basis to changing somebody’s employment terms, then these should be confirmed in writing.
7. Listen to workplace concerns
It is important, at such a challenging time, that employers remain open with their employees about what they are doing to manage any risk from COVID-19. If employees share concerns, listen carefully, and take necessary action to resolve and do so promptly. Under the Employment Rights Act, employees, and workers, have a legal right to make a protected disclosure (whistleblow), if they reasonably believe serious wrongdoing within the workplace.
For more information about how to navigate the upcoming changes to Covid-19 restrictions or to speak to one of our advisors, please Contact Us