business person using hand sanitizer. concept for living with covid

The rules on managing Covid-19 in the workplace changed again on 1 April 2022. In this article, we look at the key points to consider.

New guidance was issued as part of the Government’s policy on learning to live with Covid. Legal restrictions have been lifted and universal free testing has come to an end. However, employers have been left with difficult issues to navigate with limited support and guidelines, having to balance the needs of running an organisation along with duties of workplace safety.

New government guidance with effect from 1 April

The Government has replaced its previous guidance so that in some ways Covid-19 is now almost being treated as with other respiratory diseases. There is new guidance to follow on the reduction of respiratory infections in England:, which includes precautions for employers to manage risks and reduce the spread of Covid-19 in the workplace in support of staff and customers. It is generalised guidance, replacing sector specific Covid guidance that had applied before. The underlying message is that Covid-19 is still a dangerous disease, there should be a cautious approach to it and people should be vaccinated. However, there is a greater onus on employers and individuals to make their own judgements on catching it and managing risks.

Staff with a respiratory infection – what to do?

Government guidance has been issued advising that if a person has symptoms of a respiratory infection, including Covid-19, and a high temperature or is not well enough to attend work or carry out normal activities, they should try to stay at home and avoid contact with other persons. Individuals should do this until there is no longer a high temperature or until they no longer feeling unwell.

Although testing for Covid-19 is no longer part of the advised approach on dealing with Covid-19, there will be individuals who continue to use lateral flow tests and who may be  provided with tests by their employer. Under current Government guidance, an employee with a positive test should remain at home and isolate for 5 days or longer if there is still a high temperature or they still feel unwell. The advice is to avoid meeting people who are at risk of becoming seriously unwell, for example, persons with a compromised immune system for 10 days after a positive test.

Staff who have a positive Covid-19 test or those who have symptoms are advised to ‘try to work from home if you can. If you are unable to work from home, talk to your employer about options available to you.’ There will be some circumstance where it is not possible for an employee to work from home and employers will need to consider what ‘options’ there might be (if any) and what is feasible in terms of managing such a situation.

Employers should review their approach to managing Covid-19 and policies on staff self-isolating and attending work with respiratory infections. Harder issues to deal with may be those workers who have mild symptoms, are asymptomatic, or have come into close contact with another person with Covid-19, but they themselves are well enough to attend work. Requiring staff to test for Covid-19 is more likely to be a reasonable management request if the test is supplied and funded by the employer. Employers may wish to consider if they are willing to support staff with sick pay on sickness absence due to respiratory infections, in particular, because statutory sick pay (SSP) no longer applies to isolating employees without symptoms and employees with Covid-19 will now not receive SSP until the fourth day of sickness absence. Although, paying more than SSP may not be possible for all employers and there may be a concern in some workplaces about potential malingerers if company sick pay was paid from day 1 of sickness absence.

Close contacts

Individuals who have been in close contact with a person who has tested positive for Covid-19 are no longer advised to work from home or self-isolate. There are recommended steps to avoid the spread of Covid-19, which include avoiding contact with those people who are at risk of becoming seriously unwell from Covid-19 and limiting close contact with persons outside of their own household. But, guidance has not been given on how employers might support staff who have had close contact to comply with this at work. Although, an employer could request employees to let them know if they have been in close contact in order to facilitate arrangements to work from home (where possible) and to take into account in order to manage situations where there are staff who are at a high risk from infection.

Measures in the workplace

There is no longer a general legal requirement to specifically take into account Covid-19 in a workplace risk assessment. Although, current Government guidance on reducing the spread of respiratory infections indicates that employers may choose to include this in risk assessments. However, employers are still required to comply with general health and safety law and their common law duty of care to provide a safe place of work. This includes duties under the Health & Safety at Work Act 1974, to take all reasonably practicable steps to assess and protect against risks to the health and safety of staff and visitors.

Under current Government guidance employers are advised to keep workplaces clean and well ventilated. Also to encourage vaccination and to be aware of a now much longer list of symptoms. Previously the list of potential symptoms to identify Covid-19 included a high temperature, cough and change to taste or smell. The Government guidance has greatly expanded the list for (people with symptoms of a respiratory infection including Covid-19) to cover common symptoms of many ailments including feeling or being sick, sore throat, stuffy or runny nose, lack of appetite, unexplained tiredness, diarrhoea. Employers are advised to consider how they might best, ‘support and enable their workforce to follow this guidance as far as possible.’ No advice is given on what this might mean, but measures to consider could include supporting in working from home, self-isolation and therefore company sick pay. There will of course be jobs that cannot be carried out from home and not all employers can support paying more than statutory sick pay.

For many employers it may not be possible to support staff working from home on each occasion they suffer from one of the expanded list of symptoms in the Government guidance. The guidance is open to interpretation and can be read so that employers may choose to ask staff to keep away from the workplace if they have a high temperature or do not feel well enough to go to work or carry out normal activities. Nevertheless, reasonable employers should not be requiring staff who are unwell to order to be at work. An employer should review what its policy will be in these situations and communicate this clearly to staff.

Staff at higher risk of infection

 The following categories are identified as being at higher risk to Covid-19 in Government guidance as a reminder for employers to consider those at greater risk form infection by Covid-19:

  • Older people
  • Those who are pregnant
  • Those who are unvaccinated
  • People of any age whose immune system means they are at higher risk of serious illness
  • People of any age with certain long-term conditions

There is specific Government guidance for those who have a compromised immune system which means they are at a higher risk of Covid-19 infection, which is due to reviewed on 1 July 2022. The guidance for such persons is, ‘if it feels right for you, work from home if you can.’ If it is possible to work from home then these persons are advised to speak to their employer about what arrangements they can make to reduce their risk. They may have a qualifying disability under the Equality Act 2010 and therefore entitled to a reasonable adjustment to be made to accommodate them at work. There isn’t any guidance on how employers should deal with such staff that are employed in situations where it is not possible to work from home.

Consultation and communication

Employers are required to consult workers and their representatives about changes that could affect health and safety, which includes with reference to Covid-19. Consultation may help reassure staff by taking into account their concerns about health and safety measures to reduce the risk of Covid-19. Whichever policies an employer decides to adopt for their organisation in order to manage the risk of infection and spread of Covid-19, care should be taken to effectively communicate this to staff. This could include written guidelines and policies as well as the opportunity of face to face communication. Employers will need to remain flexible as Government guidance and attitudes continue to develop.

Our experienced Employment team supports and advises employers on Covid-19. If you have any questions or need advice for your business now that we are entering the ‘living with Covid’ phase, then please contact us.