Is self-isolation still the answer for employers?
Advice for employers in England on the latest self-isolation guidance which holds that from Thursday 24 February 2022 people who test positive for Covid will no longer be legally required to self-isolate.
What is the latest guidance?
The government’s latest guidance, Living with Covid-19, can be found here.
As stated by the Prime Minister in the House of Commons on 21 February 2022, the remaining legal restrictions with regard to self-isolation in England are due to come to end from 24 February 2022. However, until 1 April 2022, those with a positive test will still be advised to stay at home. Post 1 April, people will be expected to exercise personal responsibility as to whether they isolate from others or not.
Statutory Sick Pay (SSP)
The Statutory Sick Pay Rebate Scheme, which has allowed employers to claim for COVID-related sickness absences occurring from 21 December 2021 and onwards (if they employ fewer than 250 employees as of 30 November 2021) will be coming to a close on 17 March 2022. This means that employers will no longer be able to claim back SSP for their employee’s coronavirus-related absences/self-isolation post 17 March 2022. We strongly advise that employers organise themselves to be efficient in utilising the scheme over the next month or so as the deadline to submit new claims, or amend claims, for absences up to 17 March 2022 is 24 March 2022.
At present, SSP can be claimed from the first day of incapacity for Covid related absences, however normal service will resume from 24 March 2022 whereby employers should revert to paying SSP from the fourth qualifying day that their employee is not able to attend work, irrespective of the reason for their absence.
What does this mean for you or your business?
The new guidance with respect to self-isolation, or rather the lack thereof, throws up some issues for employers.
One issue concerns pay. From 24 February 2022, employers may well find themselves in a position where an employee tests positive for Covid and returns to, or wishes to return to, the workplace. Under general employment law, where a worker is willing and able to work, the employer must provide work for the worker and pay them in full. Not to do so would be a breach of contract, and an employer would be opening themselves up to potential litigation if they were to send a worker home without full pay due to them testing positive. Therefore, if the employer wishes to keep the positive testing employee away from the workplace, they no longer have the power of the law to do so.
Another issue concerns the employer’s health and safety duties owed to their employees and the people that their employees come into contact with, for example customers. Therefore, an employer may feel that they should not allow an employee with Covid into the workplace in order to protect other workers, especially vulnerable workers with underlying health conditions.
Of course, employers are perfectly entitled to create their own policies to protect staff and customers. For example, employers can still request that where staff test positive or if they are symptomatic, they should not come into work. The issues here will come if/when the free Covid tests run out. If tests run out, employers may be tempted to resort to other measures such as conducting temperature checks when employees turn up to the office. This is not a recommended alternative course of action as taking temperatures is not a measure which is currently recommended by the government or the World Health Organisation.
A further issue faced by employers in keeping their workplaces safe and Covid-free is that the requirement for workers to notify their employers will also be coming to an end on 24 February 2022. If an employer decided to only pay those who are self-isolating SSP, they may find that employees stop communicating with their employers regarding their Covid status and will be coming into the workplace notwithstanding their positive test to ensure that they receive full pay.
Therefore, the only option that employers may have, if they wish to keep Covid out of the workplace is to pay self-isolating employees full-pay, notwithstanding the fact that it will no longer be a legal requirement to self-isolate. Ultimately, the decision making of the employer needs to be carefully balanced, taking all factors into consideration.
The position post 1 April 2022 is expected to be more clear-cut. It is expected that from April, the government will remove the health and safety requirement for every employer to explicitly consider Covid in their risk assessments, and new public health guidance is expected. It is hoped that this new guidance provides clarity for employers.
What do you need to be doing now?
As mentioned above, employers need to:
- make any claims under the Statutory Sick Pay Rebate Scheme by 24 March 2022;
- consult their sickness absence policy to ensure that it is fit for purpose; and
- consider implementing polices to allow for the protection of staff and customers where an employee tests positive for Covid.
If your company requires any advice on the implications of the new guidance, please don’t hesitate to get in touch with our experienced Employment team.
These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.