Living with COVID-19: what are the legal issues for employers?

On 21 February, the Prime Minister outlined the Government's proposals to end all remaining COVID-19 domestic restrictions in England. This is subject to appropriate Parliamentary scrutiny but it is unlikely that the Labour Party will object to any of the proposals so we expect them to be approved.

Following the Prime Minister's announcement, the Government "Living with Covid" plan was released, explaining how England will move into a new phase of managing COVID-19.

In this article we look at the issues that employers are likely to have to consider as the restrictions are lifted and we adapt to living with COVID. It looks at the position in England; different restrictions continue to apply in Scotland and Wales and will be removed at different times. Northern Ireland has already revoked its restrictions and replaced them with guidance.

Timetable for the lifting of restrictions

There will be a phased approach to the removal of restrictions in England. The changes that are relevant to employers are set out below.

Guidance has now been published for people with COVID-19 and their contacts. In summary, those testing positive should not attend work. They should isolate for 10 days but can go back to normal activities if they have negative lateral flow tests on days five or six (or two later consecutive days) and they do not have a high temperature. If they are unable to work from home, they should discuss the options available to them with their employer. The guidance states that they may be eligible for SSP. People they live with should work from home for 10 days if they are able to do so. A contact of someone who has tested positive who does not live in the same household does not need to work from home. This guidance will be updated on 1 April.

Issues that employers need to consider

The "new normal" will affect the workplace and employers need to consider how they will manage various issues that will arise from the lifting of the restrictions. We look at some of the legal issues.

Requiring employees to return to the workplace

There are many difficult issues to be considered here. Will employers require workers to return to work? What if they have employees who have not been vaccinated, are immuno-suppressed, are at high risk or live with someone who is at high risk? All of these individuals are probably more likely to catch COVID-19 now than at any time during the last two years. If employers require staff to return, will any exceptions be made for disabled employees? Will they face employment tribunal claims if they require all employees to return?

In practice, employers are likely to find that some employees will be keen to return, some will want to carry on working from home and others will want to continue with hybrid working. Employees may be reluctant to return if they have concerns around using public transport now that face coverings are no longer compulsory.

You may find that others will either refuse point blank, or try to attach conditions to their return (eg "I'll only come back to the office if everyone is vaccinated/I can work at home two days per week/you pay my travel costs"). Employees could argue that their place of work has changed from the workplace to their home by custom and practice and that they should be able to claim expenses for going into work.

If employers continue with remote or hybrid working arrangements for some or all employees, it is likely that the place of work in their contract of employment will have changed. This means that a statement giving particulars of the change will need to be given to the relevant employees at the earliest opportunity and, in any event, no later than one month after the change.

Any disputes with employees will need to be carefully handled and concerns will need to be taken seriously. That does not mean that employees will be allowed to refuse to return without good reason. However, employment tribunals will have sympathy with the notion that the pandemic has shown many roles can be performed from home or on a hybrid basis. If employers do wish to return their workforces to the workplace all or most of the time then it will be important to involve employees in that decision through consultation and/or staff surveys.

Employers who can clearly articulate the benefits of a return to the workplace for both them and employees, along with the ongoing measures they are taking to reduce risks, will fare better than those who do not try to take their workforces on the journey.

Flexible working requests

Employees who are required to return to work, having worked from home during the last two years, may submit a flexible working request to change their place of work. Currently, they can do this as long as they have more than 26 weeks' employment. These requests will need to be handled carefully, as employees are likely to argue that they have already demonstrated that they can work successfully from home so their request should be granted. As above, an employment tribunal is likely to be sympathetic to that viewpoint and employers will therefore need a clear explanation as to why an employee's role requires a physical presence. In any event, if an employee's request is refused for one of the eight current business reasons, they may simply vote with their feet and find another job that is more flexible, particularly in light of "The Great Resignation" and the large number of job vacancies at the moment.

Where an employee is disabled under the Equality Act 2010, the employer will have to consider whether they need to make reasonable adjustments. An employee who is at high risk from COVID-19 may well be disabled and it would be difficult for the employer to argue that working from home is not a reasonable adjustment if a role has been performed at home for the last two years.

Testing

Free tests are being withdrawn from 1 April. Lateral flow tests will be available to buy from retailers, and the large pharmacies have indicated they will charge around £2 per test. Employers will need to consider whether they will require employees to test themselves before coming into the workplace. Alternatively, they may decide to ask employees with symptoms of COVID-19 to take a test. If testing is required, employers should supply the tests or reimburse employees for them (subject to tax rules). The cost implications of paying for tests need to be taken into account, especially where there is a large workforce. However, if employers do not assist employees with the costs of testing then fewer employees will take tests and any testing policy is likely to be ineffective in reducing the risk of workplace outbreaks.

Self-isolation

With effect from 24 February someone who tests positive is no longer legally required to self-isolate but they are encouraged to stay at home for at least five days. Employers will need to consider their policy on self-isolation; will they require employees with COVID-19 to remain at home in order to avoid spreading the virus at work? What about employees who are asymptomatic? What are the pay implications, bearing in mind that SSP will no longer be payable from day 1? However, employers may not know that an employee has tested positive because employees are not required to tell their employer from 24 February. Once free tests are discontinued, it will be more difficult for an employee to know whether they have COVID-19 or not.

Self-isolation raises other tricky issues, such as whether employers will leave themselves open to claims by other employees if they do not require someone who has tested positive to remain at home.

Overall, encouraging employees who have tested positive to remain at home must be the best approach but will only work if employers are willing to pay sick pay to those who do. It is likely to be more effective for employers who operate company sick pay as opposed to those who only pay SSP.

Vaccinations

Plans to make vaccination compulsory for health and social care staff in England are being revoked, which means it will be much more difficult for other employers to enforce a mandatory vaccination (or "no jab no job") policy. An employee may object to working near someone who has not been vaccinated or who is known to be anti-vaccination and could bring a grievance if this is not resolved informally. Given the difficulties of enforcing compulsory vaccination, such grievances are most likely to raise legal issues if the employee concerned is disabled and at higher risk from COVID-19.

Health and safety measures

Face coverings are no longer legally required, although current Government guidance is to wear them "in crowded and enclosed spaces where you may come into contact with other people you do not normally meet". Employers will need to consider whether to require face coverings in any areas at work and whether they continue with other health and safety measures, such as hand sanitiser, regular cleaning of surfaces, CO2 monitors, ventilation, employees signing in and out, desk-spacing, booking desks in advance and social distancing. Employers should continue to follow the "Working Safely" guidance until 1 April, when the new public health guidance will apply.

Risk assessments

Although most employers will no longer have to consider COVID-19 in their risk assessments from 1 April, they need to do so up until that point. The duty to take reasonably practicable measures to protect employees and others from harm, including the risk of transmission of coronavirus within the workplace, will continue to apply after that date. Employers may therefore decide to continue to identify and record the risk of transmission of coronavirus in their workplace risk assessment and continue with some or all of their existing COVID-19 related controls and measures.

Guidance

Employers will need to review the new public health guidance when it is published and consider what steps they need to take to comply with it.

Some final thoughts

None of these issues is straightforward and they all require balancing the interests of different groups of individuals and the interests of the organisation. Nevertheless, employers should decide quickly what their approach is going to be and communicate it to staff so that everyone is clear about what to expect. It may need to be changed as further restrictions are lifted and additional or updated Government guidance is published.

At the news conference held on 21 February to outline the proposals to lift the restrictions, Sir Patrick Vallance said: "This pandemic is not over". Scientists expect the virus to continue evolving, probably for the next two years, and we may see further variants that could be more severe than Omicron. If so, legal restrictions may be reimposed and employers will need to be ready to pivot quickly to working from home again if necessary.

We will be holding a free webinar on 16 March at 10am at which we will be looking at these issues in more detail.