10 Feb Lifting of Covid isolation poses many challenges for employers
Boris Johnson announced yesterday that he expects to end all Covid restrictions in England by the end of February, one month earlier than planned, including the legal requirement for people who test positive with Covid to isolate for at least 5 full days. A government spokesperson said the law will be replaced with guidance – for example, people will be urged not to go to work if they have Covid (but they will not be breaking a law if they do).
Alan Price is CEO at BrightHR. He says: “This presents many challenges for employers, who may soon find themselves having to manage employees coming into the workplace whilst they are Covid-positive.
“They may also have to manage staff members and service users who are clinically extremely vulnerable, and therefore concerned about their safety within workplace – this will likely be most prudent for care sector organisations.
“Employers will have to look closely at their H&S policies and procedures, to ensure the workplace is Covid-safe; this might mean (re)introducing other safety measures such as face masks.
“Something employers may want to consider is introducing a contractual isolation requirement, so they can tell employees not to come into the workplace if they have Covid. It’s important to assess how this will work in practice, for example, how long will the isolation period be, what pay will employees get whilst isolating and how they will evidence having Covid?
“If you have a contractual isolation requirement, then you would be able to tell your staff not to come into the workplace if they are Covid-positive or showing symptoms. This policy (and the process for implementing it) would work in a similar way as what we’ve seen over recent months for contractual vaccination policies.
“For some businesses, the best option may be to allow staff to work from home and maintain their normal pay, with minimal disruption to business operations.
“A key factor will be looking at how employers identify Covid cases in the first place. Many companies already ask employees to take regular Covid tests, but the government has announced that they plan to introduce charges for lateral flow tests – it is expected to cost £30 for a box of 7 tests
“Lateral flow tests should only be taken for asymptomatic cases; those who have Covid symptoms should take a PCR test. It may be that employers have to source PCR tests and cover the costs for employees. It will likely be unreasonable to force an employee to pay for a Covid test if doing so is a contractual requirement from the business.
“A breach of a contractual requirement may, ultimately, lead to disciplinary action but it’s important for employers to consider why an employee is refusing to isolate they look at taking any action. If they have reasonable grounds for refusal, then you would need to make accommodations.
“Where the employee unreasonably refuses, and the contractual requirement is fair and justifiable, then it would be possible to look at starting disciplinary procedures. Failure to follow a reasonable management instruction such as this may allow for a warning or gross misconduct dismissal, depending on the individual facts of the case.
“A recent ET case (Allette v Scarsdale Grange Nursing Home), a contractual vaccination policy was found to be reasonable and an employee’s subsequent dismissal for her refusal to be vaccinated was fair – whilst the facts of the case are different, employers can learn from the process followed to introduce a contractual isolation policy.
“Employees will understandably be concerned about an increased spread in Covid due to the removal of isolation rules and employers have a duty of care towards all staff, including for their physical and mental health. It’s important to carry out Covid risk assessments and ensure Covid-secure measures are in place in the workplace to keep everyone as safe as possible. Explain the measures you are taking to employees to help reassure them and address any concerns they have.
“You may need to make reasonable adjustments, such as homeworking arrangements, for employees who have genuine concerns about the workplace, for example, those with a disability or who are clinically vulnerable. Also consider employees who live with or care for someone who is vulnerable and may be worried about coming into work.”
