On the 21 February 2022, two years on from the start of the pandemic, the government announced its plan for England, for how we are to live with COVID-19 going forward (the devolved governments of Wales, Scotland and Northern Ireland set their own COVID-19 plans).
It now means that the responsibility for how to live with the virus will be placed on individuals and employers rather than the government.
So what does this mean for employers? Will employers now be able to require staff to return to the office full time? Can they require face coverings in the workplace? And what happens if an employee tests positive for COVID-19, can employers require they self-isolate?
General legal obligations
Before we consider these questions, it is necessary to understand the legal duties imposed on employers, as well as employees, under current health and safety laws.
The Health and Safety at Work Act 1974 places a legal duty on employers to protect the health, safety, and welfare of everyone in the workplace and to make appropriate arrangements to ensure this happens. This duty even extends to everyone who might be affected by the business, such as visitors, contractors, agency workers and customers.
There is also The Management of Health and Safety at Work Regulations 1999 which sets out as a minimum, that an employer must identify what could cause injury or illness in the business, decide how likely that someone could be harmed and how serious the risk is, and to take action to eliminate the hazard or if not possible then to control the risk. In other words, conduct workplace risk assessments.
There are further health and safety laws that makes any failure to take all reasonably practicable steps to reduce workplace risks to their lowest level a criminal offence, as well as placing a legal duty on employers to consult with the workforce on health and safety matters.
Whilst the legislation does place most of the responsibility on the employer, section 7 of the Health and Safety at Work Act places a legal duty on an employee to co-operate with their employer as is reasonably necessary.
Can employers require staff to return to the office full time?
Yes, potentially, since the Government no longer advises to work from home. The Coronavirus Regulations will not be renewed so there is no legal or advisory basis for an employer to continue operating remotely.
It is entirely for an employer to determine whether it is reasonable and sustainable to the business to maintain home working, based on the nature of the business, and the role the individual carries out.
However, employers do also have legal obligations to make reasonable adjustments for an employee if they have a physical or mental impairment which would be deemed to be a disability for the purpose of the Equality Act 2010.
Home working in some cases, could be considered a reasonable adjustment.
Can employers make employees wear masks around the office?
Whilst there will no longer be legal duties placed on employers and employees in England, it will not automatically mean employers can remove all COVID-19 measures. Living with COVID-19 is about living with it safely, and under health and safety laws as described previously, as well as employment laws such as the Equality Act 2010, employers are still required to take all reasonably practicable steps to reduce workplace risks to the lowest level and to put in place any reasonable adjustments.
It could be therefore, that there could still be a case for face coverings, whether this would be a requirement or advisory would depend on the circumstances of each business and how safe the working environment is overall in managing the general risks. For instance, small, confined workspaces, or laboratory work.
The steps that need to be taken 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.
The risk assessment must consider all those who may be clinically extremely vulnerable from the virus, as well as pregnant workers.
Can employers require staff to self-isolate if they have COVID-19?
Employers are entitled to introduce rules and procedures relevant to their workplace, so long as the rule is fair, reasonable, and proportionate. When it comes to COVID-19, we know that it is highly infectious and those who are more vulnerable and the unvaccinated, are at greater risk from serious harm. Employers could very well form a reasonable argument for setting a policy that requires employees to stay away from the workplace if they test positive for COVID-19. This will tie into the risk assessment process and will be a measure that will help protect everyone, but especially those who are clinically extremely vulnerable or pregnant.
Those who are clinically extremely vulnerable are also likely to be protected under the Equality Act simply for the fact that they will have a serious underlying medical condition. In which case, introducing a policy to require employees to stay away from the workplace when having tested positive is another reasonable adjustment.
As already noted, it is 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 is vital and will lead to better results at ensuring employee buy-in to any new restrictions you need to implement. Developing a COVID-19 safe workplace policy is also recommended in which you can set out in writing, expectations on both sides.
If you would like support with creating your own safe working policy for COVID-19, please visit our Doc Shop or contact us for more information.
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