Throughout the pandemic, creating a safe workplace for employees has been a very difficult passage to navigate. Balancing the safest of staff, government covid rules and guidance together with the operations of a business have been no easy feat. From Thursday 24 February, the legal duty to isolate is lifted and employers will be left to decide how best to protect their employees in the workplace in respect of covid without the benefit of legally imposed isolation.
Fundamentally, every employer has a statutory duty to provide a safe place of work for both employees and those attending their place of work. Under the Health and Safety Act 1974 and the Management of Health and Safety at Work Regulations 1999, employers have a general duty to conduct a risk assessment of all the work activities carried out by their employees, by identifying any hazards and evaluating associated risks. Where reasonably practical, employers should take steps to remove any hazards and minimise any associated risks. Over the past 2 years’ covid has been a legal and necessary consideration within this sphere.
On 21 February, the government issued its latest guidance ‘COVID-19 Response: Living with COVID-19’. It sets out the next steps for society to live with covid, including the implications on the workplace, extract of guidance as follows:
Changes at a glance
From 21 February the Government will:
-Removing the guidance for staff and students in most education and childcare settings to undertake twice weekly asymptomatic testing.
From 24 February the Government will:
-Remove the legal requirement to self-isolate following a positive test. Adults and children who test positive will continue to be advised to stay at home and avoid contact with other people for at least 5 full days and then continue to follow the guidance until they have received 2 negative test results on consecutive days.
-No longer ask fully vaccinated close contacts and those aged under 18 to test daily for 7 days, and remove the legal requirement for close contacts who are not fully vaccinated to self-isolate.
-End self-isolation support payments, national funding for practical support and the medicine delivery service will no longer be available.
-End routine contact tracing. Contacts will no longer be required to self-isolate or advised to take daily tests.
-End the legal obligation for individuals to tell their employers when they are required to self-isolate.
-Revoke The Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations.
From 24 March, the Government will:
-Remove the COVID-19 provisions within the Statutory Sick Pay and Employment and Support Allowance regulations.
From 1 April, the Government will:
-Remove the current guidance on voluntary COVID-status certification in domestic settings and no longer recommend that certain venues use the NHS COVID Pass.
-Update guidance setting out the ongoing steps that people with COVID-19 should take to minimise contact with other people. This will align with the changes to testing.
-No longer provide free universal symptomatic and asymptomatic testing for the general public in England.
-Consolidate guidance to the public and businesses, in line with public health advice.
-Remove the health and safety requirement for every employer to explicitly consider COVID-19 in their risk assessments.
-Replace the existing set of ‘Working Safely’ guidance with new public health guidance.
For clarity the Statutory Sick Pay (SSP) rebate scheme will be withdrawn from 24 March 2022, meaning employers can no longer claim SSP back for employees absence related to covid or isolation. The normal SSP rules will come back into play meaning that employees will revert back to qualifying for SSP from the fourth day of sickness absence.
So what should employers think about now:
- Conduct and have in place a sufficient and suitable risk assessment of the workplace, to include measures for covid (legally necessary in respect of covid up until 30 March).
- Put in place reasonable measures to minimise any risks identified. Ultimately, you cannot eliminate all risks of covid and the government has accepted this in its decisions set out above, however this needs to be balanced with your duty to provide a safe place of work.
- Ascertain what your organisation’s position will be on employees isolating for the recommended 5 days when contracting covid, together with how this will affect pay or sick pay. Considerations will include:
- Ultimately, where an employee is “ready, willing and able to work” they are still entitled to be paid if their employer prevents them from working.
- Additional precautions for anyone coming into work with covid (i.e. masks, working in isolation).
- Working from home arrangements.
- Vulnerable workers in the workplace and how they may be affected by this change, and any potential concerns they may have.
- Possible mental health concerns by those who have struggled with the covid pandemic.
As with the whole of the covid journey, employers will have to adjust in phases to both support and protect employees. We will reach a new phase once all government funded testing is withdrawn in April, but it’s important for organisations to focus on the here and now, and communicate its approach to its employees.
If you have any questions, then please don’t hesitate to get in touch with a member of the team today.