The Beginning of the End? Implications of the Ending of COVID-19 Restrictions
As has been widely reported, the COVID restrictions in England will be progressively removed between 24th February 2022 and 1st April 2022, following the Government’s new guidance “COVID-19 Response: Living With COVID-19”. In this article, we look at some of the considerations that employers will need to take into account because of these changes.
Firstly, here is a summary timetable of the changes in England:
From 24th February 2022:
- The legal duty to self-isolate ended. The guidance remains that people who test positive should stay at home and avoid contact with others for at least five days and employees should only return to work after they have received two negative test results on consecutive days.
- The legal duty of an employee to tell their employer that they need to self-isolate ended.
- The Self-isolation support payments for those on low incomes who self-isolate due to COVID-19 ended.
From 24th March 2022:
- The special COVID-19 Statutory Sick Pay (‘SSP’) provisions will end. See the snapshots section at the end of this newsletter for more information.
From 1st April 2022:
- Free lateral flow and PCR tests will no longer be available for most people.
- Employers will no longer have to specifically consider COVID-19 in their health and safety risk assessments.
So, what are the implications for employers in light of these changes?
As at the time of writing, it is still expected that the sector specific guidance from the Government will be that employers should continue to allow employees who test positive to stay at home. However, given the fact that the legal duty for employees to tell employers that they have tested positive has now ended (with effect from 24th February 2022), employers will now need to ask and essentially rely on the fact that employees will tell them if they test positive.
So, what if an employee tests positive and their symptoms mean that they can still work? At the moment, the employee can still be asked to work from home (if this is feasible) and receive their pay and benefits as normal. If an employee tests positive, but they cannot work from home, from now until 24th March 2022, SSP will continue to be payable to them from the first day of their absence.
As mentioned above, from 24th March 2022, the SSP regime will go back to the old rules. However, due to the fact that the ability for most employees to get tests for free will also end on 1st April 2022, the combination of these two changes will need to be considered.
Ultimately, if an employee is too unwell to work (even from home) due to COVID-19, they would be unfit to work in the usual way and (from 24th March 2022) receive either SSP or contractual sick in the same way as any other sick employee.
But what about those employees who are not feeling particularly well, but who would have come into work pre-pandemic? Given the ending of free testing on 1st April 2022, there may be a reluctance on the part of the employee to get tested to see if they have COVID-19 and they may just assume that they have a cold. As of yet, there is no hard and fast approach to this tricky situation. Some employers may ask their employees to work from home on normal pay if they have COVID-19-like symptoms, to err on the side of caution. If an employee cannot work from home, it may be sensible for the employer to pay for COVID-19 testing and ask the employee to remain at home on normal pay until the test results are forthcoming.
If an employee is diagnosed with COVID-19 and they are either asymptomatic or their symptoms are not bad enough to make them ‘unfit to work’ and they cannot feasibly work from home, the broad consensus is that the employer could seek agreement for the employee to remain at home (as per the Government’s guidance) on normal pay.
As at the time of writing, there remains a lot of uncertainty regarding the potential implications of the easing of restrictions and we will continue to provide further updates as things progress.
