Living with COVID-19 – an employer’s guide

Introduction

Nearly two years after the introduction of the United Kingdom’s first COVID-19 lockdown, England’s COVID-related restrictions officially came to an end on 24 February 2022. In Scotland and Wales, restrictions are set to end on 21 March 2022 and 28 March 2022 respectively. In Northern Ireland, measures are also easing gradually.

It is hard to imagine that life will ever return back to exactly how it was pre-COVID in the near future. However, the UK government is of the view that we must now “live with and manage” the risk of COVID-19, as set out in its Living with COVID plan (the “Plan”).

Although this approach seems sensible and pragmatic, especially in light of the fast-paced vaccination drive and the current mental health crisis within the UK, it does create a challenge for employers who must now balance the end of government-mandated COVID-19 restrictions and support against the continued threat of COVID-19 to its workforce.

In this article we take a look at how the end of COVID-19 restrictions and support might impact and shape the employment landscape in the future.

What has changed under the Plan?

The Plan is an extensive document produced by the UK government setting out how England will move into a new phase of managing COVID-19. For more information on how the UK’s devolved nations will manage their approach to COVID-19, please refer to the following links: (1) Scotland; (2) Wales; and (3) Northern Ireland.

We have set out the main stages of the Plan below (applicable to England only):

From 24 February 2022:

• Self-isolation
  • People with COVID-19 are no longer legally required to self-isolate. Notwithstanding this, the guidance recommends that those who do test positive should stay at home and avoid contact with other people for at least five full days. There will be specific guidance for those who work in vulnerable services, such as adult social care and healthcare.
• £500 Test and Trace Support Payment
  • Self-isolation support payments of £500 for those on low incomes have stopped. These payments were provided where an eligible individual (i) tested positive for COVID-19 following a PCR test or an assisted lateral flow device test; or (ii) were notified as a close contact of someone who has tested positive for COVID-19 and they were not exempt from self-isolation.
• Contact Tracing
  • Routine contact tracing has ended. The effect of this is that people in contact with someone with COVID-19 will no longer be advised to self-isolate or take daily tests.
• Self-declaration of COVID-19 status
  • Workers are no longer legally required to tell their employer if they need to self-isolate because they have COVID-19.

From 24 March 2022:

• Statutory Sick Pay (“SSP”)
  • The COVID-19 provisions within the Statutory Sick Pay and Employment and Support Allowances regulations will be removed. This means that workers will no longer be entitled to SSP from the first day of their self-isolation, unless they are not well, subject to the usual SSP rules (SSP will only be payable from the fourth qualifying day an employee is off work, regardless of the reason for their sickness absence, with three unpaid waiting days).

From 1 April 2022:

• Testing
  • Free mass symptomatic and asymptomatic testing for the general public will end. Testing will instead be targeted towards those that are the most vulnerable.
• Self-isolation
  • People with COVID-19 symptoms will be asked to exercise personal responsibility when deciding whether to stay at home. This marks a key departure from the current advice which is that those who test positive for Covid-19 are advised to stay at home (see above).
• Employer Health & Safety
  • Employers will no longer have to consider COVID-19 as a separate risk when assessing how to keep their employees safe. The purpose of this approach is to empower businesses to take responsibility for implementing mitigations that are appropriate for their circumstances.
  • The government will replace the existing set of ‘Working Safely’ guidance with new public health guidance.
  • The Plan states that employers should continue to consider the needs of employees at greater risk from COVID-19, including those whose immune system means they are at higher risk of serious illness from COVID-19.
  • The government will consult with employers and businesses to ensure guidance continues to support them in managing the risk of COVID-19 in workplaces.

Implications for Employers

Notwithstanding the above, it is hard to avoid the reality that COVID-19 continues to remain a real threat to human life (see here for latest UK COVID-19 statistics), especially to those that are clinically vulnerable and unvaccinated.

Therefore, employers will still need to consider their approach to managing COVID-19 within their workforces carefully, taking into account the change in direction by the UK government as well as considering their own wider health & safety duties and responsibilities to their workforces. This is likely to result in employers diverging in how they manage the risks of COVID-19 going forward, with some taking more of a relaxed approach while others take a stricter approach than is envisaged under the Plan.

We set out below some high-level employment and data protection considerations for employers going forward in light of the Plan:

Employment law considerations

Although the Plan confirms that from 1 April 2022, employers will no longer have to consider COVID-19 as a separate risk when assessing how to keep their employees safe, this does not absolve employers of their general health and safety duties to their workforce. Such obligations include an employer’s:

• statutory, common law and contractual duties in respect of health and safety, including to take reasonable care for the safety of their employees and provide a reasonably suitable working environment;
• duties to consult with employees on health and safety matters. The Health and Safety Executive (“HSE”) has published helpful guidance setting out what employers need to do to ensure they are complying with the law in this area; and
• duty to carry out risk assessments, again in accordance with HSE guidance.

Now that the UK government has removed its guidance around home working and workers are now being encouraged to discuss their return to offices with their employers, we anticipate that the transmission of COVID-19 within workplaces is likely to increase steadily over the next few months, and with it the level of staff absences. Therefore, many employers will be well advised to continue in considering COVID-19 as a separate risk in workplace risk assessments for the time being.

As part of such an assessment, it is likely that many employers will continue to maintain their existing COVID-19 mitigation practices. This may include encouraging the use of mask wearing where there is a risk of overcrowding (such as in lifts), provision of hand sanitisation equipment, advising workers to take a COVID-19 lateral flow test before they attend the office and excluding entry into the office where an employee has tested positive for COVID-19.

Notwithstanding this, the Plan presents some key health and safety challenges for an employer:

1. From 1 April 2022, there will be no free testing for COVID-19 – this presents a challenge to employers who may wish to continue requiring employees to take a COVID-19 test before they enter the workplace as a way to reduce transmission. It is unlikely that employees will want to pay for such tests privately, especially given that they are under no obligation to test regularly by the UK government. It is certainly up to an employer to privately buy and provide COVID-19 tests to its employees and some may consider the expense to be a necessary step to ensuring health and safety. However, employees may not feel comfortable testing so regularly given the change in approach to COVID-19, with the Plan suggesting that testing will be targeted to those groups that may be immuno-compromised and those working in social care. Therefore, the blanket screening of staff may be seen by employees as inappropriate. It remains to be seen how employers will deal with this going forward.
2. There is no legal requirement for an employee to isolate if they have tested positive for COVID-19. An employer can still impose its own self-isolation requirements as part of its risk assessment, but given that there will be no free testing and there will be no support from 24 March 2022 onwards if an employee self-isolates with COVID-19 (aside from SSP from day 4 of a period of incapacity), an employee who cannot work from home effectively may be dissuaded from volunteering that they have COVID-19. Of course, it is up to an employer to decide to provide enhanced sick pay in the event that an employee is required to self-isolate and cannot work from home effectively, and some employers may take the view that this is an appropriate way to properly manage the risk of transmission.
3. The Plan also confirms that employers must continue to consider the needs of employees at greater risk from COVID-19, including those whose immune system means they are at higher risk of serious illness from COVID-19. It is likely that many employers will have already implemented measures to protect those who are most vulnerable to COVID-19 (for example permitting vulnerable workers to work from home or in a socially distanced, or screened-off, space in the office). However, considering the specific needs of those who are vulnerable may become trickier given the changing approach to COVID-19. For example, once free testing has come to an end, employees may come into the office without knowing that they have COVID-19, or may be unwilling to disclose that they are experiencing COVID-19 symptoms if they cannot work from home and will not receive pay for time spent isolating. Such situations clearly heighten the risk to a vulnerable person of contracting COVID-19 in the workplace. However way an employer deals with COIVID-19, individual concerns from vulnerable staff will need to be carefully considered and taken into account in any wider risk assessment.

It is clear from the above that managing COVID-19 going forward may create some challenging scenarios for employers and they will need to carefully balance the appetite to return to “normal” and the risk of COVID-19 spreading, creating a health and safety risk and disrupting the smooth operation of the business. Employers will also need to keep their arrangements under regular review, and be prepared to make changes should hospitalisation/death rates start to rise and / or new, more dangerous variants emerge.

Data protection considerations

As the UK government’s approach to COVID-19 has changed, it is likely that employers will need to review their approach to data gathering in connection to COVID-19. Some employers may have been collecting data on COVID-19 infections, test results and/or employees’ vaccination status in order to ensure that necessary self-isolation rules were being adhered to and employees were appropriately renumerated as per government guidance at the time.

Now that the restrictions have been lifted, employers will need to re-evaluate the data that they are gathering to consider whether they have a lawful basis to process such data under data protection law. Previously, it may have been lawful for employers to process certain categories of data on the basis that it was necessary to comply with legal requirements, for example for employees to isolate after testing positive for COVID-19 or to self-isolate where employees have symptoms of COVID-19. Now that these requirements have ceased, employers may no longer be able to lawfully process such data.

Of course, despite the Plan, employers could seek to collect such data in order to meet their own health and safety obligations. Specialist data protection advice should be sought before implementing plans to do so.

Concluding Thoughts

Clearly, the complete relaxation of COVID-19 restrictions does not mean that employers can now behave as though the pandemic is over. The steps towards normality that the Plan ushers in will certainly be welcome in many ways. However, COVID-19 is still very much in existence and employers should be prepared to adapt quickly.