• Kiri Thompson

Removal of domestic COVID-19 restrictions in England

The timeline of events for scaling back all remaining COVID-19 restrictions in domestic settings has now been announced. The following measures will be implemented on these dates:

From Thursday 24th February:

· The legal requirement to self-isolate will be scrapped. This means that any individuals who test positive for COVID-19 from Thursday will simply be advised to self-isolate for 5 days on a voluntary basis only, remain at home and - wherever possible - avoid contact with other people.

· The legal requirement for close contacts of a positive tested individual to take daily lateral flow tests will also come to an end.

· The Test & Trace support payment scheme of £500 for those self-isolating who are on low incomes will come to an end. After this date, no new claims will be accepted.

· Routine contact tracing will come to an end.

· Employees will no longer be required to inform their employer if they need to self-isolate.

From 24th March:

· Statutory Sick Pay (SSP) from day 1 for COVID-19 related absences and self-isolation will end. This will be replaced with the usual SSP rules, i.e., an initial unpaid 3 ‘waiting’ days after which SSP begins to be paid on day 4 of the period of absence, or self-isolation.

From 1st April:

· Free lateral flow and PCR tests for the general public will come to an end.

· It is anticipated that free tests will only be available for the over-80s and the clinically vulnerable, but the precise groups able to access them are yet to be confirmed by the UK Health Security Agency (UKHSA).

· Care home patients and NHS patients will still be entitled to receive free asymptomatic testing, with stocks available for asymptomatic “surge” testing of NHS staff if needed.

· Care home staff will be entitled to free tests if they are symptomatic. Free diagnostic testing will continue for NHS patients.

What do these changes mean for employers?

The removal of the legal obligations for an employee to self-isolate, and for them to also notify their employer if they should be self-isolating, is predicted to potentially have a significant effect on employers especially given that for those on low incomes, the financial support incentive to self-isolate has now been removed. It therefore places the onus on employers to police this against a backdrop of very little guidance and financial support.

What can employers do if someone attends work after testing positive?

After Thursday 24th February 2022, there is no legal obligation for employees to self-isolate if they test positive for COVID-19. Instead, the obligation becomes a moral and voluntary one on the individual to self-isolate and reduce contact with others.

Equally, from this date, the employee is under no obligation to inform their employer of the need to self-isolate.

Should an employee choose to attend the workplace rather than self-isolate, the employer can continue to implement COVID-19 secure measures such as:

- Working from home, where the role permits this.

- Utilising free lateral flow and PCR tests, until 1st April

- COVID-19 risk assessments.

- Hand washing and hand sanitising stations

- Social distancing

- Cleaning of key touch points

- Wearing of face masks, gloves and other PPE.

Can colleagues refuse to work with someone who has tested positive for COVID-19?

If employees feel there are any imminent threats or dangers to their health and safety present in their workplace, including biological threats such as infectious diseases like COVID-19, employees can legally refuse to attend the workplace until the threat has been removed.

The employee should notify their employer of this situation, and their intentions to refrain from attending the workplace until the situation has been resolved.

In this situation, although the employee has a statutory right to refuse to attend the workplace until the matter is resolved, there is no automatic right to pay for their time away from work.

The employee should not be disciplined or dismissed for asserting this statutory right as this could lead to an employment tribunal claim of automatic unfair dismissal, which can be brought by the employee, regardless of their length of service.

Can an employer send someone home who has tested positive for COVID?

As already outlined, because from 24th February, there will no longer be a legal obligation for individuals to self-isolate or for employees to tell their employer of a need to self-isolate, employers need to be cautious when managing such situations.

The employee is under a moral obligation to consider if they are genuinely fit for work or if they are contagious to others, in a similar way as someone attending the workplace with another infectious disease, such as Chicken Pox or the Flu.

Ultimately, in the same way that employers have a duty of care towards their employees in the workplace, employees have a duty of care towards themselves and others in the workplace under Section 7 of the Health & Safety at Work Act 1974. This will be the starting point when assessing and managing such situations and employers may make the decision to send employees home from work if they are found to be infected with a contagious disease, including COVID-19.

Before making such a decision however, the employer will firstly need to be aware that under Section 64 of the Employment Rights Act 1996, an employee who is suspended from work by their employer on medical grounds is entitled to be paid their normal pay whilst they are suspended, for a maximum period of 26 weeks.

Given the cost implications of this, the employer may firstly wish to consider any alternative reasonable adjustments to the employee’s role that could make it safer,or solutions to avoid such measures which would also lessen the risk of infection to other employees, such as a period of temporary home working if possible.

In some cases, the employer has no choice but to suspend the employee on medical grounds, in which case the employee is entitled to their normal pay for this period. The suspension should be as brief as possible and be lifted as soon as the employee is no longer in the contagious infectious period of their illness.