Following the Prime Minister’s announcement of the government’s plans for those in England to live with COVID-19 and the publishing of new guidance, “COVID-19 Response: Living with COVID-19” and COVID-19: people with COVID-19 and their contacts we summarise below the key changes coming into effect and key issues for employers to consider.
What is changing from 24 February?
Positive cases of COVID-19
With effect from 24 February, anyone who tests positive for Covid-19 would not be breaking the law if they carry on their daily life, socialise and attend the workplace. The government, however, still advises that, until 1 April, anyone who tests positive for COVID-19 should self-isolate for at least five full days and up to 10 days. Individuals are advised to take a lateral flow device (LFD) test from five days after their symptoms started (or the day their test was taken if they did not have symptoms) followed by another LFD test the next day. If both these test results are negative, and the individual does not have a high temperature, the advice is that the individual can safely return to their normal routine.
During the self-isolation period individuals are advised not to attend work and that, if they are unable to work from home, they should talk to their employer about the options available to them. Individuals who have tested positive for COVID-19 are also advised to let people with whom they have been in close contact know about their positive test result.
Close contacts of positive cases
If a fully vaccinated individual comes into close contact or shares a household with someone who has tested positive for COVID-19, from 24 February they are no longer advised to take LFD tests for seven days, and the legal requirement for close contacts who are not fully vaccinated to self-isolate will no longer apply.
However, new guidance for close contacts has been published. Anyone who lives with, or who has stayed overnight in the household of someone who has COVID-19, is advised to work from home if they are able to do so for 10 days after the day on which the symptoms of the person with whom they live or stayed started (or the day their test was taken if they did not have symptoms). If they are unable to work from home they should minimise contact with anyone who is at higher risk of serious illness from COVID-19 and limit contact with people outside their household, especially in crowded, enclosed or poorly ventilated places. They should wear a face covering if in a crowded, enclosed or poorly ventilated space.
The advice to work from home does not apply to anyone who has been in close contact with someone with COVID-19 who is not a household member or if they have not stayed overnight in the household of the person with COVID-19. However, they are still advised to take extra care in following general guidance for the public on safer behaviours (including ventilating indoor spaces, wearing face coverings and trying to stay at home if unwell).
Anyone who has been in close contact with someone with COVID-19 is advised to take a PCR test if they develop any symptoms of COVID-19.
Until 31 March, individuals are still advised to take a free PCR test in certain circumstances, including if they have a temperature, a new, continuous cough or a loss or change to their sense of taste or smell.
LFD tests will also continue to be made available to the public free of charge until 31 March, although the government guidance now states that individuals should only order LFD tests in limited circumstances. These include where the individual is going to be spending time in a crowded or enclosed space, is visiting someone who is at higher risk of getting seriously ill from COVID-19, wants to leave self-isolation after five full days or is working at or visiting somewhere that is high risk, including hospitals, care homes, prisons and special needs schools.
Those at higher risk of COVID-19
The majority of people previously considered clinically extremely vulnerable are now advised to follow the same general guidance as everyone else as a result of the protection they have received from vaccination. The latest guidance also emphasises that older people, those who are pregnant or unvaccinated and those with a severely weakened immune system or certain long term conditions are at higher risk of serious illness from COVID-19. It also highlights that individuals may not know that people with whom they come into contact (including colleagues) are at higher risk and emphasises the importance of following the guidance for that reason.
Also, from 24 February:
- Workers will no longer be legally obliged to tell their employer when they are advised to self-isolate or when they have tested positive for COVID-19.
- Routine contact tracing will end.
- The Test and Trace Support Payment Scheme will end. Individuals can still make a claim until 24 February 2022.
What is changing in March?
Statutory Sick Pay
The Statutory Sick Pay Rebate Scheme will close on 17 March 2022 meaning that employers will no longer be able to claim back Statutory Sick Pay (SSP) for their employees’ coronavirus-related absences or self-isolation that occur after 17 March. Employers have until 24 March to submit any new claims for absence periods up to 17 March or to amend claims they have already submitted.
From 24 March, SSP will no longer be payable from the first day of absence if an employee is unable to work because they are sick due to COVID-19. People with COVID-19 may still be eligible for SSP, subject to the normal conditions of entitlement; however, pre-pandemic SSP rules will apply, including the four day waiting rule.
What is changing from 1 April?
Access to free testing will end
The general public will no longer be able to access free symptomatic and asymptomatic testing. The government will stop providing free PCR and LFD tests to all but a small number of at-risk groups and social care staff. Individuals or employers will need to pay for private tests if they wish to continue testing.
The health and safety requirement for every employer to explicitly consider COVID-19 in their risk assessments will be removed. Instead, employers will be expected to take responsibility for implementing health and safety measures that are appropriate for their circumstances.
Working Safely guidance to be replaced
The current "Working Safely" guidance will be replaced with new public health guidance, which will likely advise employers to consider the needs of employees at greatest risk from COVID-19. The government intends to consult with employers and businesses to ensure that guidance remains relevant.
How will these changes impact employers?
There is likely a greater risk that employees with COVID-19 will attend the workplace, especially from 1 April when free testing ends. This could place vulnerable workers at risk, and possibly cause an outbreak, with associated impact on productivity.
For the time being, until 1 April, employers will need to decide whether to emphasise the government guidance for those who test positive for COVID-19 to self-isolate for at least five full days and until they receive two consecutive negative LFD test results, up to a maximum of 10 days. Employers may want to consider requiring staff who have tested positive not to attend the workplace during the self-isolation period.
There is a risk that this message may have been lost in the media headlines focussing on the lifting of all legal restrictions. If employers do decide to require staff not to come into the workplace if they have tested positive, this will need to be clearly communicated. Also, if the infected worker is unable to work from home and is otherwise fit to work but is being required by their employer not to attend work, they would be entitled to full pay from their employer.
If employers allow those who have tested positive to attend the workplace in contravention of the guidance they will need to consider how best to protect other staff and members of the public, such as requiring the infected person to wear a face covering or to work in a non-people facing role for up to 10 days.
Employers will need to decide whether staff who have been in close contact with someone who has tested positive must inform their employer and whether that person should continue to attend the workplace, taking into account the guidance is to work from home if the close contact is a household member. If any close contacts do attend work, again employers should consider if they need to take other steps to protect staff and members of the public, such as requiring the close contact to wear a face covering for the 10 day period. Employers should also consider reminding staff who have been in close contact with someone with COVID-19 to take a PCR test if they have any symptoms of COVID-19.
Testing and symptomatic employees
Any employers not in a high risk sector who currently encourage or require employees to test regularly with LTD tests should consider reviewing this policy as government guidance now states that individuals should only use LFD tests in limited circumstances, including if the person will be visiting a high risk place or spending time somewhere crowded, enclosed or poorly ventilated.
From 1 April, when access to free testing for the general public ends, most individuals will simply not know whether they have COVID-19 or whether a close contact has COVID-19. Employers will need to consider whether they wish to provide and pay for tests for their workers to reduce the risk of staff attending the workplace with COVID-19 and, if so, they will need to decide on their policy as to what happens if someone does test positive.
Employers will also need to consider whether to provide any guidance to workers not to attend the office if they have any symptoms of COVID-19. Given symptoms include common cold symptoms, such as a runny nose and sore throat, this may be problematic for many employers if the individual is unable to work from home. Employers will need to bear in mind that if the person is well enough to attend work but is asked to stay at home for a few days and cannot work from home they will be entitled to be paid.
Health and safety
Regardless of these changes, employers will remain under a duty to take reasonable care for the health and safety of their employees and to provide and maintain a safe place of work. Employers will therefore still need to consider the risk posed by COVID-19 and other infectious diseases to vulnerable members of staff and take appropriate measures to mitigate that risk. Hopefully, the new public health guidance will provide employers with more information about appropriate steps to take. Even so, it looks likely that living with COVID-19 will mean many employers will have to make some difficult decisions and balance health and safety risks with the needs of the business.