With the release of the UK government’s ‘Living with Covid’ plans, the restriction landscape has moved quickly in recent weeks:

• From 24 February 2022 mandatory self-isolation for those testing positive ends. 
• From 17 March 2022 employers can no longer reclaim up to two weeks’ statutory sick pay, paid to employees who had covid or were self-isolating, and employees with covid will not get statutory sick pay from day one but will have to wait for day four. 
• From 1 April 2022 free lateral flow/PCR tests will stop.  
• The government has also announced it is reversing the legislation which requires anyone working in a care home to be vaccinated against covid-19.

Time for employers to relax?

Despite the relaxing of restrictions, employers still have an obligation to keep their workers and visitors safe. It would be irresponsible not to have a policy in place ensuring workers do not come to work and spread the virus, particularly if they are working with older or vulnerable colleagues.

Covid-19 is still a reportable disease if illness or death is due to an ‘occupational exposure’ to coronavirus, and although it would be difficult to pinpoint the exact infection point, this will not stop workers from alleging it was caught at work. 

The Health and Safety Executive (HSE) website still recommends adequate ventilation, cleaning, and hand sanitising, as well as there still being an obligation to carry out a risk assessment. 

Employers who are foolish enough not to adhere to these recommendations and not put adequate policies in place, might face potential prosecution from the HSE if workers become seriously ill.

What should employers do?

Health and safety in the workplace starts with personal responsibility, and any policy should start with a statement that the best way for a worker to protect themselves against serious illness and death from covid is by being fully vaccinated, including any booster vaccinations.

Special care will need to be taken with unvaccinated employees.

However, there are those who cannot be vaccinated due to medical reasons, as well as those who choose not to. As a result, special care will need to be taken with unvaccinated employees – perhaps more working from home or increased testing for those working around them.

Equally, it would be unreasonable to expect an entire workplace to try and work from home, still wear masks, and socially distance because a small minority of the workforce refuse to be vaccinated and are at much more risk.

What should a policy contain?

As well as obvious points such as ensuring that employees are routinely washing their hands, keeping rooms ventilated, and increasing cleaning, policies will have to include what to do if a worker has symptoms. When it comes to the latter, employees should be advised to remain away from work until they have had a test, which the employer will have to pay for. 

In deciding how long employees should stay away from work for, the USA Centre for Disease Control recommends a five day period, as the science indicates that most transmissions occur in the first few days. 

What will employees get paid if they cannot work from home? Employers who do not adequately pay workers who test positive may be accused of not doing all they can to prevent them coming to work when positive, as employees may not be honest about their illness as they cannot afford not to be paid.

Employers who do not adequately pay workers who test positive may be accused of not doing all they can to prevent them coming to work when positive.

There should also be a clear statement that anyone who attends work in the knowledge that they are positive for covid will be committing gross misconduct and may be dismissed without notice.

What claims can be made?

Employees who believe that they are in ‘serious and imminent danger’ in the workplace can refuse to come to work. If an employer then chooses to dismiss said employee for this, it can lead to successful claims for automatic unfair dismissal, irrespective of their length of service, as evidenced in the recent case of Mr C Preen v Coolink Ltd and Mr R Mullins.

But if they are fully vaccinated and boosted, are they now really facing serious and imminent danger? This will of course depend on the next variants, but certainly Omicron is generally considered to be a milder strain of the virus. 

But without a policy, such a claim is still possible. For instance, an employee could be showing all the signs of covid, be unable to get a free test and will not or cannot pay for one, and there are no employer rules in place instructing workers to stay away from work in these circumstances, or offering to pay them.

Employees who believe that they are in ‘serious and imminent danger’ in the workplace can refuse to come to work.

If the employee who is sick cannot afford to be away from work on no pay for four days, there are no rules telling them they have to stay away and so they may attend the office, potentially placing unvaccinated, older, and vulnerable employees at risk, which opens up the organisation to potential claims.

Some employer controls 

Whilst in an ideal world employers would love to be able implicitly trust all of their employees, unfortunately they will need to be alert to workers calling in claiming to have covid, just to receive a week off on full pay.

As many parents discovered, lateral flow tests done at home without supervision were easy to manipulate with lemon juice to produce a positive result. Therefore, control over the testing of workers will need to be carefully considered. The policy should state that provided the employee is able to provide either a positive PCR test or undertake a lateral flow test in person – which the employer will pay for – then they will be paid. 

No doubt that all of those companies making millions from pre and post travel tests will now turn their attention to offering their services to employers. This means that now is the perfect time for employers to make friends with their local testing site/provider and put together a simple policy to cover the issues above.

Interested in other covid-related areas? Check out our content series: ‘The economic impact of covid-19’.

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