Living with COVID 19: Government Guidance and key things for employers to consider

Guidance has been introduced by the UK government around ‘Living with COVID’, which came into effect on 1 April 2022 and places the onus on employers to decide what measures to take when managing cases of COVID-19 in the workplace.

The Guidance follows the relaxation of the self-isolation rules where people who test positive are not legally required to self-isolate and lateral flow tests are no longer free except for individuals eligible for COVID-19 antiviral treatments and those in certain high-risk settings.

In this article, we consider the government’s Guidance and what this means for employers, the implications for certain sectors, such as health and social care, now that mandatory vaccination has been scrapped, along with some of the key questions we are hearing from our employer clients, regarding how to mitigate the risks still posed by COVID-19 with a less prescriptive approach on how to manage those risks, from the government.

How do I manage employees who test positive for COVID-19 and mitigate the risks for other members of staff?

The current government advice for people who test positive for COVID-19 is to isolate for five days until they test negative. However, self-isolation is no longer a legal requirement, and it is for employers to make their own assessments of what arrangements to put in place for (1) people who test positive for COVID-19 and (2) testing.

The Guidance is flexible, and employers are able to decide what measures are appropriate in their workplace to keep people safe. Approaches will vary depending on the nature of the business and the need to balance such factors as health and safety obligations (higher in particular sectors such as health and social care), employee confidence about returning to the workplace, customer confidence (if customers visit your premises), how easily employees can work from home, reputational risks, staffing costs and the potential disruption that could be caused by an outbreak of COVID-19 amongst the workforce.

Some steps that you might consider taking, to help reduce the spread of COVID-19 in the workplace, are:

1. Encouraging working from home for a period of five days from the day that an employee tests positive, where employees are well enough to work from home or where the employee lives in a household where there is a positive covid case;
2. Providing free testing for employees;
3. Ensuring well-ventilated spaces; and
4. Implementing measures to protect clinically vulnerable employees or employees who live with clinically vulnerable people.

Working from home is not possible in all sectors or for all employees so what can you do in situations where this is not an option for staff to work from home and, what obligation is there to pay an employee for time off if an employee has tested positive for COVID-19, they are fit to work and there isn’t an option for them to work from home?

Is there an obligation on an employer to pay sick pay to an employee who tests positive for COVID-19 or lives in a household with a positive case?

Taking time off work due to a positive COVID-19 test is deemed as sick leave where the employee is unable to work from home due to illness. As such, those employees will be entitled to Statutory Sick Pay (SSP), usually payable from day four of the employee’s absence, or company sick pay, if such a policy is in place.

If an employee needs to stay away from work, where they are well enough to work, they have tested positive or, are living in a household where there is a positive COVID-19 case, but are unable to work from home due to the practicalities of this, those employees will be entitled to receive their full pay. There may be some exceptions to this depending on the employees’ contract of employment or the company’s sick pay policy.

Do I have to provide free COVID-19 testing for members of staff?

No. Now that free lateral tests are no longer available, it is down to employers to decide the extent to which they want to use/pay for testing as a mitigating factor towards reducing the risks associated with COVID-19.

Without testing, and the minimal guidance in this respect from the government, it will be difficult to mitigate such risks, where it is not known whether or not someone has COVID-19.

Whatever arrangements are put in place the importance will be on remaining flexible and keeping arrangements under review. Government guidance and employer practice will evolve over time so watch this space and we will provide updates as and when trends begin to emerge.

If I provide free testing for staff how should I record the results and what are the data protection implications for storing such data?

Recording employees’ vaccination status data constitutes a special category of data under data protection legislation and the Information Commissioner’s Office (ICO) has issued updated guidance on data protection and COVID-19 for employers to review and consider. Some key points to consider from that guidance is:

• What is your reason for checking or recording employees’ vaccination status? This must be necessary and transparent. If you cannot specify a use for this information and you are checking it on a ‘just in case’ basis, or, if you can achieve your goal without collecting this data, you are unlikely to be able to justify collecting it;
• The use of this information must not result in any unfair treatment of employees and you should only use it for purposes that they would reasonably expect;
• You will need to identify a lawful basis for collecting this information. If you previously relied on legal obligation as your lawful basis and still want to collect this information, you will need to identify another lawful basis (e.g. mitigation of risk/safety of staff);
• If the use of this data is likely to result in a high risk to individuals (e.g.denial of employment opportunities or services), or you will be processing health data on a large scale, then you need to complete a data protection impact assessment.

Data protection law doesn’t prevent you from keeping staff informed about potential or confirmed COVID-19 cases amongst their colleagues. However, you should avoid naming individuals wherever possible, and you should not provide more information than is necessary.

Affected by these changes?

Contact Hatch Brenner Solicitors Employment Law Specialist, Dionne Dury to discuss all your employment matters on 01603 214 220 or email [email protected].

Sign up for our Employment Law Updates here.