A number of changes have been implemented in England concerning the requirement to isolate under the pandemic. Changes are afoot in Scotland and Wales.
It is a relief that risks are subsiding but the present situation begs the question of whether or not we will require people to sit alongside or work alongside someone known to have COVID-19. Also, will we let people who have COVID-19 serve our customers?
The legal requirement
In England, from 24 February 2022, the legal requirement to self-isolate has been removed. This has been termed as a move from legal restriction to personal responsibility.
The change applies both to people who know that they have Covid, and those that have been in close contact.
The present instruction, which clarifies what is meant by “personal responsibility”, is to follow guidance. The NHS Guidance states:
- While you’re no longer required by law to self-isolate if you have COVID-19, you should still stay at home and avoid contact with other people. This helps reduce the chance of passing COVID-19 on to others.
- This advice will be updated on 1 April 2022.
The Government Guidance is essentially the same. Clearly this is an interim position.
The guidance has not really changed from the legal requirements in place before 24 February 2022. This is to stay at home if you have a relevant symptom and get tested (i.e. a PCR test) and if you test positive, stay at home for 10 days or less if you test negative on two consecutive days from day five (this can be from a lateral flow test device).
The list of trigger symptom has not changed, a new continuous cough, a high temperature, a loss of, or change in, your normal sense of taste or smell (anosmia).
What about those at high risk?
There remains a list of people at highest risk from becoming severely unwell. These are older people, those who are pregnant, those who are unvaccinated, people of any age who have a severely weakened immune system, people of any age with certain long-term conditions.
Regrettably, although the government guidance has a link to the NHS Guidance for those remaining at high risk if you were expecting that meant particular measures specific to their risk, you will be disappointed. The guidance is that “people at high risk from COVID-19 are advised to follow the same guidance as everyone else”.
You are also guided to work from home if you live with someone who has Coronavirus. The recommended period is for 10 days from your household member developing symptoms or (where asymptomatic) from the date of the positive test.
The guidance is simply to take precaution if you have been a close contact of someone who has developed Coronavirus but you do not live with them. This means regular testing on a lateral flow device, stay at home if you develop symptoms, wear a mask in private place, work from home if you can etc.
Statutory sick pay
The bottom line is that if you catch Coronavirus or live with someone who catches Coronavirus and you cannot work from home the guidance suggests you should take time off work.
- Until 24 March 2022, if you are isolating you will qualify for Statutory Sick Pay.
- After 17 March, small employers will no longer be able to reclaim 2 weeks sick pay for Coronavirus cases, and any claims must be in by 24 March 2022.
- From 24 March you will only qualify for SSP if you are unwell. This means no SSP if you are asymptomatic but have tested positive.
There is a gap in the current guidance; it is not clear whether or not SSP will continue to apply from the first day of absence for people off ill with the virus.
If your company sick pay is linked to SSP, that might not be triggered either.
It is this change that presents a dilemma. Unless your employer is prepared to pay you sick pay or some discretionary isolation pay, staying off work could mean a loss of pay.
Some people may insist on coming to work, so they do not lose pay, but their employer may wish to keep the employee’s other colleagues and customers safe and require them to stay at home.
Others might not wish to use up some of their sickness allowance if they are not unwell.
Employer’s will no doubt continue until 1 April 2022 to apply policies which reflect the current guidance, even though there are no mandatory laws applying now.
But what will they do after 1 April 2022?
Working with Covid
The removal of SSP for those who have COVID-19 but are asymptomatic is a clear steer that the position is likely to change to suggesting that those people attend work.
There are two reasons why this is problematic.
Firstly, whilst Government’s mindset may have reached that point, there is a serious question over whether or not the public have made that shift. Many, many people currently would not like to sit next to or work alongside someone they know to have COVID-19 and the likelihood of that mindset having changed by 1 April seems remote.
Secondly, employers will always have to make their own assessment of risks to health in the workplace. It will be a brave manager who signs the risk assessment on 1 April signifying that there is no risk involved in having people in work who have COVID-19.
Many people may not wish to work alongside someone with the virus, particularly those who are still at risk of severe illness. That could trigger many rights, including the right to leave the workplace where they feel there is an imminent danger to health. Will employers try to insist that people work alongside someone who has the virus? That seems highly unlikely to become the case within the next three weeks.
1 April may not be the watershed moment for living with COVID that is suggested. While many employers have, perhaps in a more hybrid manner, embraced people returning to their offices it seems a large leap to now embrace a return to the office for people who have tested positive for COVID-19.
The law concerning pay is relatively simple; if someone is ready and willing to work but their employer requires them to stay off, then the employee will be entitled to be paid whilst they are forced to remain off.
There is nothing to prevent an employer continuing their existing policy of requiring people to remain away from work, but if an asymptomatic employee is ready and willing to work with COVID-19 and they are sent home they must be paid.
If someone is ill with their symptoms, they must still be paid any sick pay or SSP that they are entitled to. The usual 7-day self-certification followed by medical certificate requirement will apply.
Four key questions
The crucial policy questions for employers will be:
- Will we, on 1 April, assess that there is no risk in having people in work who have COVID-19?
- If we assess that there is no risk, what will we do if someone refuses to work alongside someone who has the virus?
- If we assess that there remains a risk, will we require people who have the virus to remain away from work?
- If so, what will they be paid?
There are other questions. Will employers need, in practice, to provide employees with tests if they are no longer available for free? If employers don’t then there could be implications in ever requiring employees to take a test. For low paid employees this could be problematic and if it is a requirement forced onto them by their employer it could cause questions over whether or not that cost to the employee needs to be taken into account in determining whether or not their pay remains above the national minimum or national living wage.
Many people have interpreted the changes to mean that guidance will fall away on 1 April 2022 and there will no longer be any requirements. That seems probable, in some respects, given the removal of SSP for the asymptomatic.
What do we know now?
However, all that we know at present is that the guidance will change on 1 April 2022 – we do not know what the new guidance will say.
It is possible that we will be put into a halfway house meaning that guidance is dropped for people who are not at high risk but remains for those who are. If that is the case, allowing people into work with COVID-19 may remain a problem for employers keen to protect vulnerable staff and customers.
It is most likely that we will not hear about what the new guidance will look like until the end of March 2022.
What is clear is that our mindset concerning acceptable levels of risk is likely to be challenged in coming weeks.
Our advice is not to change policy at present, wait until we are clear upon the guidance that will be in place from 1 April 2022. If the guidance changes to suggest that people with the virus attend work after 1 April 2022 (and this remains an if) you may prefer to wait a little longer to allow your employees and customers time for their mindset to catch up.