Guidance for businesses on end to Covid-19 restrictions

On Monday 21 February 2022, the Prime Minister made an announcement to the public confirming that the majority of the Covid-19 restrictions would on 24 February and outlined his plan for ‘living with Covid-19’.  The announcement to end all legal restrictions applies to England only. Restrictions remain in place in other parts of the UK.

What are the changes?

FROM 24 FEBRUARY

• People who test positive for Covid-19 will no longer be legally required to self-isolate. However, advice to stay at home and avoid contact with others for at least five full days will remain.
• Routine contact tracing will end, so fully-vaccinated close contacts and those under 18 will no longer be legally required to test daily for seven days.
• There will no longer be a requirement for close contacts who are not fully vaccinated to self-isolate.
• The guidance recommending regular asymptomatic testing with lateral flow tests will be removed.
• There will not be an obligation on workers to tell their employers when they are required to self-isolate.
• The £500 self-isolation support payment for people on low incomes who test positive for Covid  will no longer be available.

FROM 24 MARCH

• Removal of provisions which allow payment of statutory sick pay from day one of absence for those who have Covid-19.

FROM 1 APRIL

• Removal of free lateral flow tests for symptomatic and asymptomatic people, though the Government mentioned that limited free lateral flow tests for the “most vulnerable groups” would still be provided, but this category has not yet been defined.
• Removal of free PCR testing for all but vulnerable people and those in hospitals and high-risk settings.
• People with Covid-19 symptoms will be asked to exercise personal responsibility when deciding whether to stay at home – until then they are still advised to do so.
• Removal of health and safety requirement for every employer to explicitly consider Covid-19 in their risk assessments (though employers are likely to continue considering the risks of Covid-19, particularly for vulnerable members of staff).
• Current government guidance on Covid-19 passports will end and it will no longer recommend venues use the NHS Covid-19 pass.

What guidance will be released on the changes?

We are currently awaiting further Government guidance in relation to how Covid-19 will be dealt with in the workplace, but have been told that the guidance will include:

• Specific guidance for staff working in provision of services to the vulnerable.
• Updated guidance setting out the ongoing steps that people with Covid-19 should take to minimise contact with other people.
• New public health guidance to replace the “Working Safely” Guidance.

The Government had released a ‘Living with COVID-19’ document which states that after 5 days, individuals who have tested positive may choose to take a lateral flow test, followed by another the next day and if both are negative and they do not have a temperature, they can return to their normal routine. It also states that “those who test positive should avoid contact with anyone in an at risk group”.

What are the implications for employers?

Yesterday’s announcement raises various questions and impacts on the workplace. In particular, where workers test positive for Covid-19 or have symptoms, they will no longer be legally required to self-isolate. Ultimately, this shifts the burden to employers to consider what approach they will take and any associated policies and rules they wish to implement. We believe that employers will need to take into account the following considerations:

• Employers still have a duty to protect health and safety of their workforce. Whilst the Government has lifted the legal duty of self-isolation, what will your policy be, i.e. will those who test positive for Covid-19 be required to remain out of the office/workplace to avoid infecting others, and if so, what will be their pay entitlement? Similarly, if a worker experiences mild symptoms, how safe is it to go into an office or other workplace? This will largely be determined by the company’s risk assessments and policies.
• Do you have a testing policy in place and will you still require employees to test regularly or not at all? Who will bear the costs of the tests?
• How will you treat “clinically vulnerable” employees who, in light of the lifting of self-isolation requirements, feel uncomfortable to return to the workplace or who refuse to do so?
• How will you treat employees who live with or care for others who are “clinically vulnerable” and who do not want to attend the workplace? You will need to be mindful of the risk of discrimination by association.
• What health or vaccination information will you need or want and can they process it lawfully under data protection laws?
• Employers will need to consider the staff divisions or conflicts that may arise where there are differing views about attending the workplace if positive and the risk of infecting others. Will your grievance policy need to be reviewed, and have you thought about ways to deal with such conflict? It may be that managers need to undergo refresher training on such processes and managing such issues.
• Are your working from home, flexible working and hybrid working policies fit for purpose? Employers may see more employees wanting to work from home on a regular basis given the perceived increased risk of being infected once the isolation rules end.  WFH may not be possible for many organisations and the temptation to work and be paid will be high.
• Will you update and conduct new risk assessments in light of the end of isolation or will you keep the status quo for a further period?
• Have you considered issuing/updating your policies or communicating to your workforce (for example, FAQs) these points? How will you communicate to employees the approach the company is adopting?

RECOMMENDATIONS FOR EMPLOYERS

• Continue to follow the Government’s ‘Working Safely’ Guidance to ensure that you remain compliant with health and safety legislation.
• Continue to encourage your workforce to test themselves if they have symptoms of Covid-19 and to notify their manager if they test positive for Covid-19 whilst LFTs are available. Post April you will have to consider costs.
• Review and update your policies and procedures in respect of testing and self-isolation and communicate any changes to your workforce.
• Consider if any risk assessments need to be updated in light of the changes.

If you require further advice on this topic or would like to discuss next steps, including risk assessments and policy reviews for your company, please do not hesitate to contact a member of our employment law team.