gordons llp employment living with covid

Living with Covid Plan: What Does it Mean for Your Business?

Wednesday 23rd February 2022

As from 24 February, the requirement to self-isolate has been scrapped and all other remaining legal restrictions are also to be removed. But what does this mean for employers concerned to protect their workforces whilst at the same time maintaining productivity?

What is the Current Guidance?

Employers still have a legal duty to manage risks to those affected by their business. With Covid risks, most employers are all too familiar with the role of health and safety risk assessments, and the need to take reasonable steps to mitigate the risks identified.

As the risks from Covid haven’t gone away employers would be wise to remain vigilant and conscious of much of the existing Covid workplace guidance.

Can Employers Force Employees Not to Attend Work?

Perhaps the most obvious, but essential, piece of guidance is to remind staff (and visitors) that if they are unwell then they should not attend the workplace or venue. In this respect, a back to basics approach may be best. Remember how things were pre-pandemic: if you’re ill, stay home, regardless of the cause!

It will remain a reasonable management instruction to staff to stay away from work if they are unwell. Businesses have a duty to protect the health, safety and welfare of their employees. Seeking to protect employees and others from COVID-19 by requiring those who have tested positive to work from home if they can or to remain away from the business is a reasonable step to take in the in furtherance of meeting that duty.

But why would you need to? In many settings one might have expected that most employees who felt considerably under the weather would stay off. However, in so many settings now, employees simply cannot afford to stay off work.

With Covid, this presents a particular risk especially from those who only suffer from mild, “cold-like” symptoms and think they just have a mild cold. Given that free testing ends from the beginning of April can employers insist on lateral flow tests?

There is no law to say staff must be tested so those employers who didn’t previously do so are unlikely to now. Those who feel they should now do it ought to take specific legal advice. However, although it is certainly possible to bring in a policy that insists on testing, employers will probably need to foot the bill given that free testing is being scaled back.

It makes sense to have a policy of encouraging staff to be vaccinated and to get the booster vaccination. Whether employers can order staff to get a vaccine or refuse to employ someone who has not had a vaccine is a subject which has covered many column inches already, the legal issues around which are many, and beyond the scope of this article.

Should We Expect Future Updates?

We can probably expect further updates to the suite of working safely guidance (by sector) relating to the reduction of risks in the workplace but whether these guidance notes will be scrapped altogether is not clear.

For now, though, if it’s right that we are simply to live with Covid then as employers the starting point is to remember how things were in 2019 and earlier and how employers lived with seasonal flu. Employees should be encouraged to take personal responsibility and stay away if they are unwell.

The steps to overlay on that situation from a Covid perspective will no doubt be down to each individual employer’s discretion.

If you require any further information on the above developments, please do not hesitate to get in contact with a member of Gordons employment team.