COVID-19: Living with COVID-19 – How do the changes to coronavirus restrictions affect employers in England?

The UK Government recently published its plan for ‘Living with COVID-19’ which includes an end to the legal requirement to self-isolate and free testing for all in England.

It also means an end to the special rules in relation to statutory sick pay for COVID-19 and changes to other requirements affecting employers. We look at these changes and their implications for employers.

For Scotland, Nicola Sturgeon has announced plans that envisage an end to various COVID-19 related restrictions from 21 March 2022. The Welsh government has said it may remove its remaining restrictions from the end of March. Current guidance can be found here. Northern Ireland has revoked its remaining restrictions which are now guidance rather than legally binding rules.

Changes to the rules on self-isolation

From 24 February the legal requirement to self-isolate following a positive test has been replaced with guidance to stay at home and avoid contact with other people.

Anyone who tests positive is advised to stay at home and avoid contact with other people for at least 5 full days and then to continue to do so until they have received negative test results on two consecutive days taken from day 5 onwards. This guidance is expected to be in place until at least 1 April.

Routine contact tracing has also ended. Unvaccinated close contacts are no longer legally required to self-isolate and fully vaccinated close contacts are no longer being advised to test for 7 days.

The Test and Trace Support Payment Scheme, which provides financial support for isolation for people on low incomes has also now closed.

What guidance should employers be following now?

The latest Government guidance (How to stay safe and prevent the spread) says that it is no longer asking people to work from home and people should speak to their employers to agree arrangements to return to the office.

Employers and workers should continue to follow government guidance on COVID-19. For employers, the ‘Working Safely during coronavirus’ guidance, which sets out the steps that employers can take to reduce risk in their workplaces, is still in place. In particular, employers should not ask workers with COVID, or any of the main symptoms of COVID to come into work, and if they’re unable to work from home, they should talk to the worker about the options available, such as receiving SSP.

Workers with COVID and those who have been in close contact with someone with COVID should follow the government guidance - People with COVID-19 and their contacts. This advises:

• those who have COVID to stay at home, avoid close contact with anyone in an at-risk group and work from home if possible
• those who are a living in the same household with someone with COVID, or who have stayed overnight with them, should also work from home if able to do so. If they are unable to work from home, there is no specific advice to stay at home except for those with symptoms who are waiting for a test result. Other than that, close contacts are advised to “limit contact with people outside their household, especially in crowded, enclosed or poorly ventilated spaces” (and wear a face mask in those settings)”, and avoid contact with vulnerable people.

The end of universal free testing

From 1 April, free COVID-19 testing for all will end, including for those who are symptomatic and asymptomatic. Instead, the Government will help enable COVID-19 tests to be made available for those who wish to purchase them privately. 

There will be some limited ongoing free testing:

• Limited symptomatic testing available for a small number of at-risk groups - the Government will set out further details on which groups will be eligible
• Free symptomatic testing will remain available to social care staff.

Future changes to guidance

From 1 April 2022, the Government will update guidance setting out the ongoing steps that people with COVID-19 should take to minimise contact with other people.

From the same date, the Government will remove the health and safety requirement for every employer to explicitly consider COVID-19 in their risk assessments. However, employers that specifically work with COVID-19, such as laboratories, must continue to undertake a risk assessment that considers COVID-19.

The Government has also said that it will replace the existing set of ‘Working Safely’ guidance with new public health guidance from 1 April 2022. Employers will need to familiarise themselves with this guidance and review their systems of work to take it into account. As part of this, employers should continue to consider the needs of those who are at greater risk of serious illness from COVID-19, such as those with compromised immune systems.

Changes to statutory sick pay rules

From 24 March 2022, the current statutory sick pay (SSP) rules in relation to COVID-19 will end and we will go back to the pre-pandemic rules.

The right to claim SSP from the first day of absence because the worker is sick or self-isolating due to COVID-19 will also come to an end. This means that those who are unwell with COVID-19 will only be paid SSP from the fourth day of their absence.

Closure of the current SSP rebate scheme

The Statutory Sick Pay (SSP) rebate scheme will close 17 March 2022. This scheme enables some employers to reclaim up to 2 weeks’ SSP if an employee has been off work because they had COVID-19 or were self-isolating. Employers will have until the end of 24 March 2022 to claim under the scheme. No further claims can be made after this date.

This is a tight deadline for employers wishing to claim under the scheme. SSP can only be reclaimed once it has been paid to the employee, and employers only have seven days to reclaim SSP after the final date that the claim can relate to. The deadline also falls mid-way through a pay-period which may mean extra planning is needed in order to get claims in before the final deadline.

Adjusted right to work check measures extended to 30 September 2022

Temporary measures which have been in place since 30 March 2020 allow employers to make right to work checks over video calls, and job applicants and workers to send scanned documents or photo of their documents to employers via email or a mobile app, rather than sending the originals. These measures were due to end on 6 April 2022 but have now been extended to 30 September 2022. The extension is to allow employers time to develop commercial relationships with identity service providers and make changes to their pre-employment vetting processes following the proposed introduction of government-certified “identification document validation technology” (IDVT), to be launched from 6 April 2022 so that employers can check the right to work of UK and Irish citizens who hold a valid passport.

How do these changes affect employers?

Employers have a legal duty to provide a safe place of work and manage risks to those affected by their business. COVID-19 will remain an illness that can cause serious illness for some and will not go away overnight. Employers will need to strike a balance between ensuring the safety of workers and living with COVID-19 now and over the coming weeks.

The responsibility is now more on individuals and businesses to put in place measures that they think are appropriate in light of their particular circumstances and health and safety risks. Given this, employers should update their risk assessments and decide what measures are appropriate following these changes. They should also communicate with employees about what steps are being taken and any expectations of employees going forwards.

Employers will need to consider what steps they will take to keep employees safe, taking into account the relevant guidance. For now, this means trying to ensure people who test positive for COVID-19 or have any of the main symptoms of COVID follow the current guidance and stay at home. For those who are a close contact or living with someone with COVID, the steps the employer should take will depend on the particular workplace and circumstances. Taking an approach that goes against the guidance could put employers at risk of claims and other employee issues.

SSP

Until 24 March 2022, SSP will remain available from the first “qualifying day” your employee is off work if they are self-isolating for at least 4 days in a row (including non-working days) and they, or someone they live with, has tested positive or has COVID symptoms; someone in their support bubble has COVID symptoms or tested positive; they’ve been notified by NHS or public health authorities that they’ve been in contact with someone with COVID (and are staying at home until the date specified in the notification); or have been advised to self-isolate before going into hospital for surgery.

From 24 March 2022, SSP rules will go back to normal. Workers who are unwell with COVID after that date should still be eligible for SSP but only from their fourth qualifying day of absence, rather than from their first qualifying day as at present. However, for those who are well but self-isolating (either because they are a close contact of someone with COVID or they are asymptomatic) the position is more complicated and will depend on the particular circumstances.

Testing

From 1 April we will see an end to free testing for all. In most cases, unless their employer decides to pay for the tests, workers will have to pay privately if they wish to be tested for COVID-19, whether they have symptoms or not. This may mean that fewer people are tested for COVID-19 and could potentially increase COVID-19 risks in the workplace. However, COVID-19 will remain a contagious illness that is capable of causing serious illness for some.

Further questions to consider

We do not yet know what the government guidance will look like from 1 April. However, there are a number of issues employers need to be asking themselves assuming the restrictions will be relaxed even further, or even completely lifted.

For example, what approach will you take as regards workers who have minor symptoms – should they get a test or stay at home until they test negative? What about those who test positive but have no symptoms? Do you need to protect those who are at greater risk of serious illness from COVID-19? In what circumstances will you ask your workers to work from home (if at all)? When will company sick pay be payable and are any changes needed around this? Will any workplace testing be offered? What approach will you take to vaccination? How will vulnerable workers and those who live with vulnerable people be protected? These questions and more will need to be addressed over the coming weeks.

COVID-19 Response: Living with COVID-19 - GOV.UK (www.gov.uk)

If you have any questions, please contact Robert Hill or your usual contact at Clyde & Co.