Managing COVID-19 this winter – Lexology

2022 saw the removal of all COVID-19 related restrictions. As we enter our first winter restriction free, we are likely to see a significant spike in COVID-19 cases in addition to other cold or flu viruses. So, what should employers do to manage this?

It is imperative that employers consider what they can do to effectively manage COVID-19 within the workplace this winter and how best to protect their employees from associated risks. We discuss what legal obligations employers are under, what practical steps they can take and what the potential consequences of getting it wrong could be.

What is the legal position?

Throughout this year, there has been a reduction in the legal obligations placed on employers and individuals when it comes to COVID-19. However, there are still steps which it is expected both employers and individuals will take.

In January 2022 self-isolation legislation was amended and all work from home guidance was removed. In February 2022, the legal requirements regarding self-isolation ended and as a result, people who contract COVID-19 are no longer legally required to self-isolate or even test.

That said, anyone who has the main symptoms of COVID-19, or a positive test result should follow the public health advice to stay at home and avoid contact with others. Employees should not attend the workplace and if they are not able to work from home, employers should talk to them about the options available which may include statutory sick pay if they meet the necessary eligibility criteria.

In April 2022, the health and safety requirement for every employer to explicitly consider COVID-19 in their risk assessments was also removed. Nevertheless, employers should still factor in COVID-19 to their normal workplace risk assessments and implement appropriate steps to mitigate the risk which it could pose in the workplace.

This is because, whilst there is currently no specific COVID-19 related legislation in force, it still remains important for employers to comply with their legal obligations relating to health and safety, employment and equality duties. Employers have a duty to take reasonable care of the health and safety of their employees by taking reasonable steps to provide a safe workplace and to be sympathetic to any concerns employees may raise. It is also important that employers understand how to provide a safe working environment for employees and how to deal with issues arising from employee absences due to COVID-19 and/or cold/flu.

What can employers do to manage COVID-19?

Employers should:

  • Take steps to keep everyone safe at work.
  • Reassure staff by telling them how the workplace has been made safe.
  • Encourage staff to talk to them about any concerns they have.
  • Listen to any concerns staff may have and try to resolve them together.
  • Give extra consideration to people at higher risk of severe illness from COVID-19, and to workers facing mental and physical health difficulties.
  • Be aware that they must make reasonable adjustments for disabled staff.
  • Encourage and enable vaccination.
  • Let fresh air in.
  • Maintain a clean workplace.

What about those employees who are vulnerable?

There may be concern about attending the workplace amongst those employees who cannot work from home and who were identified as (or who live with someone who has been identified as) vulnerable or clinically extremely vulnerable during the COVID-19 pandemic. Whilst there is no longer any specific guidance (including in relation to shielding) for those that are considered vulnerable, government guidance does state that a doctor may advise someone who is at high risk to stay at home even though shielding has stopped. In such circumstances, the employer should check its sickness absence policy and sick pay rules, in addition to talking with the employee to understand the issue and to see how they can be supported.

In risk assessment planning, employers should ensure they involve workers or a recognised union (if applicable) and communicate openly with staff on measures adopted to safeguard their health. This enables employers to build employee trust in the absence of any existing COVID-19 restrictions as appropriate.

ACAS guidance in this regard can be found here.

Can an employer force an employee to attend the workplace if they have concerns regarding COVID-19?

If an employee is not able to work from home, employers should discuss reasonable options to facilitate an employee with COVID-19 concerns returning to work. This may include wearing a face covering and/or gloves, regularly sanitising hands and work surface areas or attending work at flexible hours to minimise contact with others. If an employee still refuses to come into work after all reasonable options have been considered (some of these being listed above), depending on the circumstances and whether they have a disability or not, it may be reasonable for an employer to commence a disciplinary procedure with the employee in respect of that refusal.

What is an employee entitled to be paid when they refuse to attend work due to fears about COVID-19 and are unable to work from home?

If the employee’s absence is unauthorised, and they are not off on sickness absence, it is unlikely that the employee would be entitled to pay as they are not willing to attend work. That said, the context in which the employee has refused to attend work would need to be closely considered, along with the measures in place to support the employee to attend, before an employer should decide to withhold pay to the employee. For example, an employer should consider whether the employee is refusing to attend work for justified health and safety reasons.

What actions can an employer take where an employee refuses to attend work because they have a disability?

If an employee refuses to attend work on the basis that they are disabled and vulnerable, there are potential discrimination issues to be considered. In addition, requiring an employee to continue to attend their workplace without first taking all steps to minimise any specific risk to them, could result in a claim for detriment or automatic unfair dismissal where there is a serious and imminent danger to their health.

Where a disabled employee refuses to attend work because of the perceived increased risk due to their disability, medical advice should be sought as soon as possible, from the employee’s GP or occupational health, to confirm or clarify the potential risks and to see what reasonable adjustments, if any, should be made to assist the employee in continuing to attend at work or to enable them to work from home if possible.

What are the potential claims that employers could face?

There are various potential claims that an employee can bring against their employer concerning the management of COVID-19. The potential claims brought depend on the specific circumstances. These can include all forms of discrimination (namely, indirect discrimination, discrimination arising and a failure to make reasonable adjustments), unlawful detriment and unfair dismissal / constructive unfair dismissal. It is therefore vital that employers effectively deal with issues arising from employees due to COVID-19 and/or cold/flu in order to avoid potential claims.

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