Man in suit writes on screen - what's your Plan B?

With the emergence of the Omicron variant of Covid-19, Plan B has been activated to limit its spread. What does that mean for employers?

Government guidance for Plan B is for office workers to work from home where possible from 13 December 2021. MPs voted to approve measures on 14 December, which included daily lateral flow tests for fully vaccinated people who come into contact with Covid cases, rather than isolating. New sector specific guidance has been issued with reference to working safely during Covid-19.

However, experts are warning the Government that stricter measures are needed to avoid an increase in hospitalisations. There are reports in the media that there could be two week circuit breaker in the UK after Christmas.

So, where does all of this leave employers?

*Please note this article applies to employers in England.

What are current rules on working from home in Plan B?

Government guidance states that office workers who can work from home should do so from Monday, 13 December. The updated government guidance is available here.

This is only guidance, rather than a general statutory prohibition from attending work which has applied earlier in the pandemic. So, to an extent, there is some discretion for employers, subject to taking into account legal and practical risks.

The guidance is anticipated to be in place for six weeks and reviewed after three weeks. However, given the concern over the upsurge in the cases of the Omicron variant, employers should take care in how discretion is exercised – see below on employer health and safety duties.

The government guidance states that anyone who cannot work from home should continue to go into work, for example, to access equipment necessary for their role or where their role must be completed in-person. There may be good reason for some staff to remain in the workplace and employers should be prepared to consider this on a case by case basis. The guidance specifically refers to employers considering if home working is appropriate for workers facing mental or physical health difficulties, or those with a particularly challenging home working environment. It suggests that if staff need to continue to go into work, regular lateral flow tests should be considered to manage their own risk and the risk to others.

We advise that employers should consider monitoring and having control over staff attending work, and to ask for reasons why if they wish to do so.

Employer health and safety duties

Employers have statutory duties of care to provide a safe place of work and legal duties of care to their staff and visitors to their premises. The government guidance confirms employers should ensure workplaces are safe for anyone who cannot work from home.

The recently updated government guidance confirms employers should be carrying out Covid-19 risk assessments. Advised safety measures include:

  • Improving ventilation;
  • Cleaning more often;
  • Turning away staff and customers who have Covid-19 symptoms;
  • Enabling people to check in at your venue; and
  • Communicating clearly, consistently and regularly so staff understand your Covid-19 related safety procedures.

This guidance should be followed along with health and safety legislation and regulations, and advice provided by sector industry bodies.

Risk assessments

Employers are well advised to review their current risk assessments in view of the new Omicron variant, alongside the latest government guidance, bearing in mind early research that vaccine protection decreases for those who only had two vaccinations.

There should be flexibility and sensitivity to situations that might arise, for example, with staff who are worried about working with colleagues notified by NHS Test and Trace, who might not be legally required to isolate. Furthermore, there may be medically vulnerable staff who are concerned, given the guidance which states contacts of Covid-19 cases should limit their contact with those at higher risk of severe illness if infected with Covid-19 and work from home if possible.

See here for guidance for contacts of people with confirmed Coronavirus and for those who are living in a household with a possible or confirmed infection.

Don’t forget that staff who work at home should also have a health and safety assessment. Many employers will be in a good position with this given the increased numbers of employees who have been working from home and continue to do so, including under hybrid working.

The consequences of not taking adequate care of the health and safety of staff could include a personal injury claim, negligence claim from an employee or visitor, regulator investigation or criminal prosecution. Employees may also refuse to come into work and there have been successful claims from staff treated to their detriment and/or dismissed in circumstances of raising a justified Covid-19 health and safety concern. In taking care to adequately meet their health and safety obligations, employers will be guarding against such claims.

For more information on unfair dismissal claims on health and safety grounds related to Covid-19, please see our previous article here.

Plan B and the new rules for self-isolation

Self-isolation following notification from NHS Track and Trace will not apply to staff who have been vaccinated, provided 14 days have passed since receiving their recommended dose. However, the strong government advice is for employees who have been in contact with someone with Covid-19 to take daily lateral flow tests for seven days (or 10 days since their last contact with the person who tested positive if that is earlier). This also applies to individuals under 18, taking part in clinical vaccine trials, and if there are medical reasons for not being vaccinated.

See above for government guidance, and NHS guidance here.

Adults who are unvaccinated and contacted by NHS Test and Trace without a medical exemption must self-isolate for 10 days. Those who test positive after a PCR test are required to self-isolate whether they are vaccinated or not. Furthermore, if an employee has Covid-19 symptoms they should be self-isolating and arrange for a PCR test as soon as possible.

An employer should not require a self-isolating employee to return to work; it is an offence for an employer to do so.

What does fully vaccinated mean?

The government has indicated it is likely the definition of “fully vaccinated” will be updated to include booster vaccinations. This seems likely given the government intention of booster vaccinations for adults, 18 years and over in response to the Omicron variant by the beginning of January 2022.

So, employers who have Covid-19 guidelines or policies that refer to “fully vaccinated” staff should review these to ensure this point has been taken into account.

Plan B or Plan C – will we have a circuit breaker?

The Financial Times has reported Boris Johnson was given a range of options under a “Plan C” which went from “mild guidance to nudge people, right through to lockdown.”

The BBC reported expert recommendations of returning to restrictions from steps one and two of easing lockdown restrictions earlier this year. The implication being no indoor mixing or indoor hospitality. It has reportedly been proposed there would be a two-week lockdown after Christmas, the implication being the UK would go into a circuit breaker commencing between 27 December and 30 December.

In leaked minutes viewed by the BBC, SAGE warned against delaying further restrictions until 2022.

What about furlough?

Increasing staff absences are anticipated and some sectors are already in difficulty with people working at home, reducing contact and cancelling seasonal plans. In particular, hospitality has been swiftly hit with the instigation of Plan B.

There have been calls for Rishi Sunak to resurrect the furlough scheme which came to an end on 30 September and for this perhaps to be sector specific. The UK has reported record breaking figures of Covid-19 over the past couple of days. But, it remains to be seen if and when the government will provide the same level of financial help as it did throughout the majority of the pandemic to employers.

While we don’t know yet what is around the corner, our Employment Team will continue to inform and support employers. If you have any questions, please get in touch.