Member Article

As we enter the brave new world in which we are all expected to get on with ‘living with COVID’, what should employers be considering for staff who know or suspect that they have COVID-19?

What are the new rules?

The government has been slowly winding down the COVID-related legal requirements in England over the past few months. While Scotland, Wales and Northern Ireland retain some restrictions it is expected that these will also be removed in due course.

There is no longer a need for people to self-isolate following close contact with someone who has tested positive for COVID, whether vaccinated or not. In addition, since 24 February 2022, there has been no legal requirement to self-isolate following a positive COVID test. The COVID-related provisions in relation to statutory sick pay and employment and support allowance no longer apply.

However, the most significant change is that there is no longer free universal symptomatic and asymptomatic testing for the general public in England. Free testing will now only be available for certain groups, such as those working within specific health and social care settings and for some particularly vulnerable people although, even then, in most cases it will only be where the individual has symptoms.

What about testing in the workplace?

For many of us, testing has become a fairly common routine. If visiting an elderly relative or going somewhere where we might come into close contact with lots of people, taking a quick (if a little uncomfortable) test is an ideal way to be confident that we are not putting others at risk. Equally, for those who have made the return to the office, many employers have (rightly) encouraged employees to test regularly to avoid passing anything onto colleagues, customers and others.

While tests are still going to be widely available, the key difference is that they are no longer free of charge, and various headlines have appeared setting out the potential costs to individuals of continuing to take the sensible approach and buying sufficient kits to continue regular testing. With inflation rising at its fastest rate for 30 years and many people’s wages stagnating, the reality is not many will be in a position to use their spare income on testing.

As a result, employers are likely to come under pressure to supply employees with testing kits if the employer wants to actively encourage regular testing amongst its workforce. In the short term at least, it is likely that ‘free COVID tests’ will become an ordinary employee benefit, comparable to an eye test voucher or a free flu jab.

If an employer claims that it is still taking COVID-19 seriously and wants most (or all) work to be carried out in person, it does not seem to be a tenable position for employers to insist that employees pay for their own tests. Indeed, for those who are close to the recently increased National Minimum Wage, there could be arguments that such an approach would take them under this statutory level.

Should employers tell employees with suspected COVID to stay at home?

Despite the fact that it is no longer a legal requirement to stay at home when testing positive for COVID, most employers will likely take the view that their employees should not be coming to the workplace if they know or suspect that they have COVID.

One of the positives which may come out of the pandemic is the fact that homeworking is now seen as less of a novelty, and so if one is feeling a little under the weather (but not too ill to work) it is less of an issue for them to work at home. As well as allowing a faster recovery, it also stops that person from potentially infecting other people. If someone’s job is able to be done from home and they test positive for COVID, it is entirely reasonable for an employer to ask them to work from home.

The difficulty arises where the person’s job cannot be done from home. The very fact that the person has tested positive will not, of itself, mean that the person is ‘incapacitated’ for the purposes of statutory sick pay. The relatively low rate of statutory sick pay, together with the 3-day waiting period, means that employees are going to be reluctant to stay at home if they will lose out financially as a result, particularly if they feel well enough to work.

Employers face a quandary as to whether to continue to pay people at full rate if they test positive but are required to stay at home when they do not qualify for sick pay. While this would be the best way to avoid complaints from the employee, it would not be very commercial and would risk creating resentment amongst other members of the workforce, as well as being difficult to police.

However, the alternative is not much better – if the employer’s policy is to allow people to come into work when testing positive if they are capable of working, this risks complaints from others. Particularly in environments where social distancing is not possible, most employees would surely not wish to share a limited workspace with someone who is capable of passing on what is still a dangerous disease, particularly if they or their relatives are a vulnerable person.

A laissez-faire approach from the employer could lead to claims from these employees. It will be necessary for each employer to consider the specific working environment and adapt their approach accordingly.

‘Personal responsibility’ – a rock and a hard place?

During what we hope are now the latter stages of the pandemic, the emphasis has very much been on ‘personal responsibility’ and ‘common sense’. While this is generally taken to refer to individuals, it can also be extended to employers. While there is no legal obligation on an employer to consider COVID-19 in their risk assessments, it is certainly advisable to do so and extensive guidance has been now been produced which supports such an approach.

While it may be tempting to follow the ‘personal responsibility’ school of thought and delegate the difficult decisions to employees themselves, such an approach would, in our view, be self-defeating. As well as being the less risky avenue in terms of avoiding COVID-related Tribunal claims (which are still very much possible), taking a more constructive approach is also an opportunity to create an open dialogue within the workplace and reduce potential friction between staff with differing views.

After two years of not seeing our colleagues in real life, it would be a shame for a return to the workplace to descend into disputes about testing and isolation, particularly if this could be avoided by means of clear communication on the part of the employer. Any approach taken by employers should not be set in stone and organisations should be prepared to adapt to a continually changing landscape which, if nothing else, we have all had to do to some extent since March 2020.