Employment Insight - What does ‘living with Covid’ mean for employers?

All legal requirements to self-isolate following a positive test or close contact with someone who has tested positive were ended on 24 February. This was replaced with guidance advising that those who test positive should stay at home and avoid contact with others, particularly those in high-risk groups. Contacts of those who have tested positive will be advised to take ‘precautions’, which will be set out in additional guidance. Employees are no longer under a legal obligation to inform their employer that they have tested positive for Covid.

It is expected that the workplace guidance will be updated shortly and is likely to require that employees are allowed to remain at home if they test positive. As has been the case previously, where employers divert from the position in the guidance, this will increase the risk of claims from employees and would certainly make it more difficult to discipline employees for refusing to come to work. 

From now until 23 March, the changes to the Statutory Sick Pay (SSP) regime will remain in place meaning those who are unwell with Covid will continue to be entitled to SSP from ‘day 1’. The immediate change, however, is that unvaccinated staff who come into close contact with positive cases will no longer be required to self-isolate or be entitled to SSP if they do so.

From 24 March, the SSP regime will return to ‘normal’ so only workers who are absent from work because they are unwell with Covid will be entitled to SSP and this will only be the case from ‘day 4’. As a result, if an employer requires staff who have Covid but are not too unwell to work to stay at home, they will need to be allowed to work from home if their role allows or be paid in full because they are ‘ready and willing to work’. 

The SSP rebate scheme will also be closed from March. The final date for submitting claims for the period 21 December 2021 to 17 March 2022 is 24 March. Employers should be aware that the self-isolation support payments for those on low incomes have also now ended. 

The provision of free lateral flow tests for the majority of people will end from 1 April, with the government expected to continue testing for certain workers, such as those working in social care and frontline NHS workers. Employers who continue to require staff to take lateral flow tests regularly, before coming into the office for example, would need to pay for tests and make sure employees are aware that they can claim back costs where they are required to purchase the tests themselves. It is not clear whether the current tax exemptions for testing will extended beyond the current end date of 5 April.

It is clear that vaccination will continue to play a significant part in reducing Covid infection and employers should encourage staff to take up booster vaccines when they’re offered them. 

The introduction of mandatory vaccination for the wider health & social care sector was withdrawn earlier this month following a government decision that it could not be justified on the data. Employers who introduced mandatory vaccination policies in their workplaces should reassess their position and consider whether the reasons for implementing it (for example, significant disruption as a result of self-isolation requirements or the protection of vulnerable customers) are still valid. 

From 1 April, the requirement on employers to consider Covid in their risk assessments will be removed. That said, risk assessments remain an important part of employers' general health and safety duty and it is likely that Covid mitigation measures such as good ventilation and promoting handwashing will continue to form part of these for now.

• Ahead of the remaining changes in March and April, we recommend that employers: 
• Consider any Covid-19 policies that were introduced at the height of the pandemic and ensure that they are amended in line with current guidance. 
• Review workplace safety measures and consider whether they are necessary and proportionate, taking into account any staff who are considered ‘clinically vulnerable’.
• Update risk assessments.
• Where staff are expected to test from 1 April, ensure that you are clear who should provide lateral flow tests and how these will be paid for. 
• Review sick pay policies and ensure that staff are clear on when they should be attending work and, where they are absent, the pay they will be entitled to.

24 February

• Legal requirement to self-isolate removed
• Legal requirement to inform employer of a positive Covid test ended
• Routine contact tracing ended

17 March    

• SSP rebate scheme ends
• 24 March  
• SSP returns to 'normal'
• Final date to reclaim sums under the SSP rebate scheme

1 April    

• Provision of free universal testing ends
• 'Working Safely' guidance to be replaced with public health guidance (yet to be published)