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The Living with Covid 19 plan what does this mean for employers

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    On 21 February 2022, and with a round of "hurrahs" in the House of Commons, the Government announced its "Living with Covid-19" plan (the "Plan"). Amongst the measures announced is that from Thursday 24 February 2022, the legal requirement to self-isolate for at least five days in England when a person tests positive for Covid-19 will end. However, the Plan states that anyone who tests positive will continue to be advised to stay at home, avoid contact with other people and may choose to take a Lateral Flow Device ("LFD") on days 5 and 6.

    We set out below a series of Q&As to help employers (with office-based staff) to navigate what the removal of the self-isolation measures means for their businesses.

    Q1. What has the Government announced in relation to the self-isolation rules in England?

    The Government has introduced an incremental lifting of the existing Covid-19 restrictions in England. In particular, from 24 February 2022 the legal requirement for self-isolation contained in The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 (the "Self-Isolation Regulations"), which was due to expire on 24 March 2022, will now end. Additionally, from 1 April, the Government will replace the existing ‘Working Safely with Coronavirus' guidance for employers with new public health guidance.

    Q2. Can we prevent an employee who has tested positive from coming into the office?

    Under the Self-Isolation Regulations there was a legal obligation on employers not to "knowingly allow" a self-isolating worker to attend work. While this legal obligation will be removed from 24 February, the Plan states that those testing positive will continue to be advised to stay at home and avoid contact with other people for at least five full days and then continue to follow the guidance until they have received two negative LFD results on days 5 and 6.

    In light of this advice, it would appear that employers should take steps to prevent employees who have tested positive from coming into the office. In addition to this guidance, employers have a general duty under health and safety law to ensure the health and safety of employees and others affected by the business 'so far as is reasonably practical'. As the risk of employees contracting Covid-19 in the workplace remains, if an employer failed to take steps to prevent Covid-19 positive employees coming to work, they could be in breach of their legal obligations under health and safety law. This could, in the extreme, lead to regulatory sanction or a claim from employees.

    While there may be exceptions, the general position is that it would be prudent to prevent employees who have tested positive from coming to the office. This position should be kept under review, as the Plan states that from 1 April, guidance to businesses – currently in the form of the 'Working Safely with Coronavirus' guidance - will be consolidated in line with public health advice. This position therefore could evolve.

    As well as the above health and safety considerations, employers can prevent an employee who has tested positive from coming into the office where such a request constitutes a lawful and reasonable instruction by the employer. To establish this instruction, employers will need to demonstrate that there is a clear rationale for requiring an employee to not attend the office after a positive test. A possible rationale could be that the instruction is necessary for the health and safety reasons outlined above.

    Q3. After testing positive, can an employee insist on working from home?

    As mentioned in question 2 above, it is unlikely that an employee will need to insist on working from home as employers will probably want an employee who has tested positive not to attend the office.

    If this is not the case and subject to the terms of their employment contract, an employee cannot insist on working from home. Employees (with at least 26 weeks' continuous service) currently have a statutory right to make a flexible working request. However, where an employee tests positive and wants to work from home the statutory process is unlikely to be triggered because there is a time period of three months from first receipt of the employee's application for the employer to consider all requests, including any appeals.

    Q4. Can we treat employees differently depending on their vaccination status?

    Employers will need to establish the reason for the employee being unvaccinated. Where an existing employee is unvaccinated because they have a characteristic such as a disability or a religious belief which is protected from discrimination by law, an employer may be exposed to the risk of a discrimination claim where that employee is treated differently from a vaccinated employee. If successful a tribunal can grant an uncapped award. Additionally the employee does not have to satisfy any service criteria.

    With job applicants, legislation prohibits an employer from asking about a person’s health or disability during the recruitment process before a job offer is made, unless certain narrow exceptions apply. The only exception relevant to a person’s Covid-19 vaccination status would be whether being vaccinated were an “intrinsic” part of the job. It is, however, unlikely that Covid-19 vaccination is intrinsic to office-based roles outside of the care sector.

    An employer could nevertheless make a job offer conditional upon a health check. Any questions asked at that point about a person’s vaccination status would not be unlawful. A person whose offer is revoked because they are unvaccinated and do not intend to become vaccinated could not bring an unfair dismissal claim. However, making employment conditional upon being vaccinated would raise discrimination risks if the applicant has a protected characteristic. Employers will therefore need to consider how their recruitment policies and practices would be applied to prospective hires who raise medical reasons for example, for why they are unvaccinated.

    Q5. What steps do we need to take to protect workers in the office?

    The Plan states that from 1 April guidance to businesses will be consolidated in line with public health advice. However, it does not remove existing Government guidance. The current 'Working Safely with Coronavirus' guidance for offices states that there are six main actions employers can take to protect workers and others who may attend the workplace. These are:

    1. Keep an up to date health and safety risk assessment that includes the risk from Covid-19;
    2. Turn away people with Covid-19 symptoms;
    3. Provide adequate ventilation;
    4. Clean more often (e.g. surfaces) and ask individuals to use hand sanitiser and to clean their hands frequently;
    5. Enable people to check in at your venue - you do not have to ask people to check in or turn people away if they refuse; and
    6. Communicate and train workers, contractors and visitors on the safety measures in place.

    Q6. How can we make those that were shielding or in the vulnerable category feel comfortable because others may not be vaccinated? Is working from home a reasonable alternative that such individuals could request?

    The Plan states that employers should consider the needs of employees who are at greater risk from Covid-19. A health and safety risk assessment should therefore expressly consider vulnerable workers and employers should ensure that control measures identified by the risk assessment are applied. In practice this will involve individual discussions between the individuals and their managers about the measures that are being put in place, any specific concerns that the individual may have, and whether any additional precautions are needed.

    HSE guidance states that, following expert clinical advice, people previously considered to be clinically extremely vulnerable will not be advised to shield again.

    If an employee is permitted to work from home, employers are subject to the same health and safety duties as if the employee was working in the office. It will therefore be important to ensure that a homeworking policy and homeworking risk assessment are in place.

    If an employee has a medical condition that amounts to a disability which is a protected characteristic under legislation, an employer has a duty to make any necessary reasonable adjustments where they are placed at a substantial disadvantage compared with a person who is not disabled. Each employee's circumstances will need to be reviewed on a case by case basis, but a request to work from home is likely to be a reasonable adjustment.

    Q7. Is there still a requirement on employees to notify their employer?

    Under the Self-Isolation Regulations, there was a legal obligation on employees to notify their employer of the requirement to self-isolate and the start and end dates of the isolation.

    This legal obligation will be repealed and, from 24 February, workers will not be legally obliged to tell their employers when they are required to self-isolate. However, we would expect employers may wish to remain aware of whether their employees have Covid-19 to enable them to prevent those employees from coming into the office.

    Q8. Can we adopt a different approach where an employee tests positive multiple times (perhaps only several months apart)?

    It is unlikely that employers will be able to adopt a different approach with such an employee. However, if an employer is concerned that there is a consistent pattern to these short term absences for example, around holiday periods, and this is giving rise to a significant detrimental impact on the business or the employee's performance, it may be appropriate for an employer to consider a fair dismissal. However, it will be difficult to rely on this approach where capability is not an issue.

    Q9. What do we need to consider in relation to other members of staff?

    It is likely that members of staff will have concerns even where an employer's policy is that an employee who has tested positive should not attend the office. To allay fear and concern (certainly initially), communication by employers is key. It may be advisable to make a set of Q&As on the employer's approach widely available on an intranet for example, so that messaging is clear and consistent.

    Q10. What should we do in relation to contractors, agency workers and visitors to the office?

    In addition to the six actions set out above, employers should provide information to contractors, agency works and visitors such as guidance on how to reduce the spread of Covid-19 before they attend the workplace or through on-site signage. The 'Working Safely with Coronavirus' guidance contains more detailed provisions, including, for example, controlling entry and exit routes for contractors and visitors. You should consider any protected characteristics that they may have, for example hearing or visual impairment.

    From an employment perspective, consistency is key. The same rules that apply to employees should be communicated to contractors, agency workers and visitors to the office. While the 'Working Safely with Coronavirus' guidance remains applicable now, it is set to be replaced by updated guidance on 1 April and so this should be kept under review.

    Q11. The Government is ending the availability of free lateral flow tests. Will we be expected to provide/conduct Lateral Flow Device testing as Covid-19 becomes just another workplace risk (prevent the spread)?

    From 1 April, the government will stop providing free testing for the general public (other than some symptomatic testing for certain at-risk groups and social care staff). Employers are not required to provide / conduct LFD testing but may choose do so to reduce risk to staff.

    Employers will need to review their policies and procedures before the date on which lateral flow tests cease to be free or readily available. The most obvious impact of this is that employees may have Covid-19 symptoms, but may not be able to access a test to confirm or deny whether they have Covid-19. An employer's approach to this should be developed in line with the updated guidance, due 1 April.

    Q12. Do we need to review and amend any of our employment policies?

    Once employers have decided on their position in relation to the Plan, they should review their employment policies to ensure that they reflect the approach that they will be taking with employees who have tested positive and amend them where necessary. While it may be sensible to start this review process now, note that updated guidance is due on 1 April.

    Q13. What should we do in relation to our Covid-19 risk assessment?

    From 1 April 2022, the government will remove the requirement for every employer to explicitly consider Covid-19 in their risk assessments. This is intended to provide flexibility for employers to implement the most appropriate mitigating measures for their business.

    The legal requirement to undertake a suitable and sufficient health and safety risk assessment will remain, and you may therefore decide that you need to consider Covid-19 to comply with health and safety law.

    Authors: Ruth Buchanan (Partner), Crowley Woodford (Partner), Eleanor Reeves (Partner), James Nierinck (Senior Associate) and Joanna Fox (Associate)

    The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
    Readers should take legal advice before applying it to specific issues or transactions.

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