Following the government’s publication of its guidance on “living with Covid-19” on 21st February 2022, a number of England’s Covid measures have changed significantly, creating a whole host of new employment law issues for employers.
What is the current position?
On 19th January 2022, the government announced that Plan B restrictions would come to an end, and consequently the guidance to work from home ended with immediate effect. The government also updated its guidance to state that “the government is no longer asking people to work from home. People should now talk to their employers to agree on arrangements to return to the office.”
Further, as of 24th February, 2022 individuals who test positive for Covid are no longer legally obliged to self-isolate. However, the guidance does advise that they should stay at home and avoid contact with others for a minimum of five full days, or longer until they have received a negative test result on two consecutive days. This guidance is expected to be in place until 1st April 2022, when the government is due to publish further updated guidance
In addition to this, the legal obligation on employees to notify their employer of a positive Covid result also came to an end on 24th February 2022. This means that employers will now have to rely on employees to notify them of a positive test result.
Should employers allow employees who test positive to come into work?
On the basis that current guidance “advises” employees who test positive to stay at home, it is advised that employers adopt this approach at least until 1st April 2022, when new guidance is published. Employers have an obligation to protect the general health and safety of their employees and requiring Covid positive employees to return to work prior to 1st April 2022 in contravention of the guidance is likely to increase the risk of claims against an employer. It is likely to be difficult to legitimately discipline an employee who has tested positive for failing to return to the office prior to 1st April 2022.
This said, on 1st April 2022, the government will remove the health and safety requirement for every employer to explicitly consider Covid in their risk assessments. The intention is to “empower businesses to take responsibility for implementing mitigations that are appropriate for their circumstance”.
We will continue to monitor the government guidance as it evolves. However, it is possible that the sector-specific guidance on working safety during the pandemic will continue to advise employers to allow employees who test positive to remain at home beyond 1st April 2022.
What about vulnerable employees?
Clinically vulnerable employees or those who live with a clinically vulnerable individual are likely to be anxious to attend work, knowing there could be a Covid positive employee in the workplace.
The guidance states that employers should continue to consider the needs of employees at greater risk from Covid, including those whose immune system means they are at higher risk of serious illness. Employers will need to consider how to manage their duty of care towards clinically vulnerable employees. However, it is worth noting that employers do not owe a duty of care to those who live with their employees though employers may choose to exercise their discretion to allow employees who live with someone who is clinically vulnerable to work in the safest possible way.
Again, it is expected that the government will provide updated guidance on this area on 1st April 2022, and it has promised to consult with employers and businesses to ensure that guidance continues to support them to manage the risk of Covid in the workplace. However, in the meantime, employers should continue to balance their duty of care and the requirement of allowing vulnerable employees to work safely against the premise that the risk of “serious and imminent danger” is now significantly reduced on the basis of mass vaccination and the limited severity of the current, dominant strain.
The government’s most recent guidance on living with Covid arguably gives rise to more questions than it answers for employers. However, what is clear from the significant de-regulation of the area is that discretion on how to deal with Covid positive cases is being pushed back on to employers. It seems that ultimately, we are moving towards a world in which we will be required to “live with Covid-19” and guidance on employment practices are likely to be amended over time to reflect this.
In the absence of any further clarity, employers should exercise their discretion on a case-by-case basis. For example, if an employer receives a request to continue to work from home from a clinically vulnerable employee who has worked from home effectively throughout the pandemic and is anxious to return to work in light of the new rules, the employer would need to think carefully as to whether it could justify a decision to force the employee to return to the workplace.
As set out above, we will publish a further article next month following the publication of the updated government guidance on 1st April 2022.
If you have any questions on the content above, please do not hesitate to contact a member of the Employment team.