COVID-19: Recent changes impacting on the workplace

In this update, we consider recent changes, that have been introduced in England and Scotland in response to the emergence of the Omicron variant, which will impact on the workplace.

Revised rules on self-isolation

In response to the emergence of the Omicron variant, the UK Health Security Agency has updated its Guidance: NHS Test and Trace in the workplace for England and revised rules on self-isolation for close contacts of Omicron cases. The same rules on self-isolation apply to contacts of suspected or confirmed Omicron variant cases in Scotland.

The key issues for employers are:

• Any workers displaying COVID-19 symptoms must self-isolate and get a COVID-19 test.
• The exemptions to self-isolation do not apply to close contacts of confirmed or suspected Omicron cases, who are also excluded from participating in daily contact testing as an alternative to self-isolation for contacts of confirmed COVID-19 cases who are not otherwise exempt.
• If workers are a close contact of someone who is displaying COVID-19 symptoms or who has tested positive (but not of someone who has been identified as a suspected or confirmed case of the Omicron variant) and they are exempt from self-isolation, then they may be able to attend the workplace - but:
  • this will depend on the particular circumstances of their employer and workplace: the guidance gives as an example the health and social care sector where employers may require workers to take additional precautions
  • workers must:
    • take a PCR test
    • wear a face covering in enclosed spaces
    • limit close contact with people outside their household - especially in crowded, enclosed or poorly ventilated spaces, and
    • limit contact with anyone who has an underlying health condition that puts them at higher risk of severe illness if infected with COVID-19.

This requirement is likely to restrict the ability of many workers who are close contacts to attend the workplace.

• Employers should:
  • support workers who are required to self-isolate
  • advise workers who have tested positive to identify close contacts
  • continue targeted asymptomatic testing in high-risk workplaces
  • improve ventilation
  • display an NHS QR code (and have a system for non-digital users) to enable individuals to be notified if they have been exposed to COVID-19 - although it is no longer a legal requirement to collect contact details for NHS Test and Trace, the guidance encourages employers to display a QR code and advises them to keep a record of all staff working on their premises, including shift times, dates and contact details.

Practical point

In many cases, workers who have been categorised previously as exempt from self-isolation will now be required to self-isolate if they are a close contact.

If an individual who has to self-isolate cannot work from home then, provided they meet the eligibility criteria, they may receive Statutory Sick Pay.

Requirement to wear face coverings in specified settings

On 30 November 2021, updated guidance and regulations on wearing face coverings came into force in England. The new requirements provide that:

• People must wear a face covering:
  • in specified indoor settings - including shops, shopping centres, banks and transport hubs
  • on public transport.
• Staff within those settings must wear face coverings when they are in a part that is open to the public, in which case employers are prohibited from asking them to remove a face covering. 
• Places that are exempt from the requirement to wear face coverings include cafes, pubs and providers of medical or dental services.
• These requirements do not apply to:
  • individuals who have a reasonable excuse for not complying
  • certain categories of people, including children under 11
  • employees acting in the course of their employment - unless they are likely to come into close contact with a member of the public.
• Fixed penalties for failure to wear a mask start at £200 for the first offence, and for those who are responsible for a relevant place or public transport vehicle start at £1,000 and increase for repeat offences, to a maximum of £10,000.

Practical point

Staff may choose to wear a face covering in the workplace, even if this is not required, and employers should ensure they are supported to do so.

Employers can choose to ask their staff or customers to wear a face covering, even if this is not legally required. When deciding whether to do this, employers need to consider the reasonable adjustments needed for staff and customers with disabilities, as well as their other obligations to employees and customers, including under health and safety and equality legislation.

The guidance on Working safely during coronavirus will be updated shortly to include more information on the changes to restrictions that have been introduced in response to the Omicron variant.

In Scotland, it is already mandatory to wear a face covering in specified settings: Coronavirus: face coverings and masks.

Working from home

In response to the Omicron variant, the Scottish Health Secretary advised people to take precautionary measures to minimise the risk of spreading infection, including working from home where possible. This advice was also given in the First Minister's statement on 30 November 2021.

The position is different in England, where employees are not currently being advised to work from home. However the government’s COVID-19 Response: Autumn and Winter Plan 2021 sets out contingency plans (Plan B), in the event that measures are needed to prevent unsustainable pressure on the National Health Service, which include asking people to work from home if they can, for a limited period.

Practical point

The House of Commons Library has published a briefing paper, Flexible working: Remote and hybrid work, which reviews the current law and guidance on flexible working and considers the impact the pandemic has had on working patterns and the future of flexible work. In addition to setting out the benefits and challenges of flexible working, including impacts on costs and inequalities, the briefing considers potential tensions around employers wanting a return to office-based work while their employees want to continue remote working. It also looks at possible reforms, including flexible working as a day one right and the right to disconnect from work during non-working hours.

The government's Consultation: Making flexible working the default has now closed and their response is awaited.