On 1 April 2022 the government's Covid-19 guidance was updated. But what does this mean for employers? Our expert HR advice team have analysed the new guidance and share their thoughts.
The day has finally arrived; 1 April 2022. It was interpreted by many to be the day that the guidance to self-isolate would be removed completely. The announcements about what to do didn’t arrive until after 9am today. Reading through the new guidance, it is clear that we are still being asked to self-isolate in many circumstances. There is however absolutely no reference to getting tested under any circumstances, probably to align with the removal today of free tests for almost everyone.
The guidance still refers to testing positive (although people are less likely to buy them) and to having symptoms.
It contains multiple references to “Try to work from home if you can. If you are unable to work from home, talk to your employer about options available to you”.
But there is nothing about what those options might be. “Just ignore it” hasn’t been ruled out.
Given that the advice to get tested has been abandoned, you would hope for a clear definition of the symptoms triggering self-isolation. You simply need to ask yourself do I “have symptoms of Covid-19, AND a high temperature OR not feel well enough to go to work OR do normal activities”. However people read repeated 'and/ors' in different ways; which is a condition precedent to the other?
Some key points from today’s announcements
The guidance tells us the following.
Try to stay at home and avoid contact with other people if you:
- have any symptoms of Covid-19, AND have a high temperature OR you do not feel well enough to go to work do your normal activities
- have tested positive for Covid-19
Important – avoid contact with people at higher risk from Covid.
If you test positive you should:
- try to stay at home and avoid contact with other people for 5 days (3 days if you are aged 18 or under)
- avoiding meeting people at higher risk from Covid-19 for 10 days, especially if their immune system means they’re at higher risk of serious illness from Covid-19, even if they’ve had a Covid-19 vaccine
What shall I do?
If you have symptoms of Covid-19, and a high temperature OR do not feel well enough to go to work or do your normal activities - you can go back to normal activities when you feel well enough to do so and do not have a high temperature.
You are advised to take precautions if you have to leave home, e.g. wear a mask, avoid contact with people at higher risk, avoid indoor or crowded places etc.
The guidance remains, therefore, to stay at home. The more detailed guidance states that you should try to work from home if you can. If you are unable to work from home, talk to your employer about options available to you.
The points highlighted in our previous blog remain the same i.e.:
- isolating without symptoms no longer qualifies for Statutory Sick Pay.
- Employers will need to decide whether or not to ask asymptomatic people who have tested positive to remain away from work.
- If an asymptomatic person does not wish to lose pay, they could insist that they are fit for work. They would need to be paid if their employer sends them home or asks them to stay at home.
- Insisting that an employee who is not unwell takes sickness leave with sick pay could be problematic under company sick pay contractual provisions, which tend to be underpinned by sickness for obvious reasons. And SSP is not triggered at all in those circumstances.
What do employers need to think about?
Additional issues which are clearly apparent now are:
- How will you keep an employee who cannot work from home out of contact with anyone who is at higher risk of severe illness from Covid-19? The list is wide and includes:
- older people
- those who are pregnant
- those who are unvaccinated
- people of any age whose immune system means they are at higher risk of serious illness
- people of any age with certain long-term conditions
- Whether or not to ask employees with symptoms to take a test, and if so whether or not to provide tests for them to use.
- Unravelling complicated questions about a person’s wellness – do they “have symptoms of Covid-19, AND a high temperature OR do not feel well enough to go to work OR do your normal activities”. It isn’t an easy question to understand.
- Close contact (sharing a household with someone who has tested positive) still triggers guidance to limit contact which is tantamount to isolation unless you work outdoors and do not come into contact with people. Will you be asked to stay away from work and will you be paid? The advice to work from home or talk to your employer about the options is not repeated here; should we read into that that people are not required to stay away from work?
Some key themes
As mentioned above, one key theme about all of the new materials is that there is no mention of getting tested. Clearly Government did not want to make any mention of this now they have removed the availability of free tests for most people. Looking at related pages on the NHS website the position becomes more clear. “Most people in England are no longer advised to get tested”.
Essentially unless you have a health condition which entitles you to new Covid-19 treatments, or are going into hospital for surgery or a procedure, or work in the NHS or Social Care, you cannot have a free Covid-19 test.
Another theme which is apparent is that Covid-19 is now being linked to other respiratory illnesses and the guidance generically covering other things like flu. The guidance applies to a long list of common respiratory illnesses:
- continuous cough
- high temperature, fever or chills
- loss of, or change in, your normal sense of taste or smell
- shortness of breath
- unexplained tiredness, lack of energy
- muscle aches or pains that are not due to exercise
- not wanting to eat or not feeling hungry
- headache that is unusual or longer lasting than usual
- sore throat, stuffy or runny nose
- diarrhoea, feeling sick or being sick
Having a temperature as well as another symptom of a respiratory illness is emphasised. The advice to try to stay at home appears to end when you no longer have a temperature, even if the other symptoms persist, provided you feel well enough to work.
The tricky questions
I’ve tested positive but cannot afford to stay at home, I’d like to come in to work
This is the key question employers will need to determine a position upon. It seems a responsible employer, keen to adhere to the guidance as best they can, might find this practically impossible to allow. They may be forced to offer paid leave. It will be difficult to ensure that someone at higher risk of severe illness does not come into contact with them.
I’m at work and a colleague is showing symptoms of respiratory illness and I’m not happy working alongside them
Previously you might have asked the colleague to take a test but now you might feel obliged not to, given that “most people in England are no longer advised to take a test”. The issue is compounded if the person making the complaint is at higher risk of severe illness. Even if the employer wants to take a responsible approach, who should they send home?
I’m fine but a member of my household has tested positive, should I come in to work?
The guidance does not suggest you should work from home or talk to your employer about options. But it still states avoiding people at higher risk of severe illness and limiting contact with people outside your household. This again will require employers to look into the degree of risk that they deem acceptable.
It appears that businesses will be left to make their own judgement calls on how they negotiate these health and safety issues with their staff and customers. The danger is that this will encourage 'a race to the bottom', where responsible and ethical businesses that continue to put provisions in place to protect their people against Covid-19 will face a cost burden, while other employers will face no such penalty as their staff and customers are made less safe.
We urge the Government to look again at its guidance and how it can better support businesses to deal with the continued uncertainty around Covid-19.
The current guidance begs the questions was it too soon to remove statutory sick pay for people who do the responsible thing and follow the guidance produced by the NHS, and is guidance which suggests things you might ‘try’ to do really going to prove effective at all.