The Government published further new guidance on living with COVID on 1 April. The guidance for people with symptoms of a respiratory infection including COVID-19 provides advice on some of the actions that can be taken to help reduce the risk of catching COVID-19 (and other respiratory illnesses) and passing it on to others. Further guidance applicable to the workplace has also been published.
Below we set out answers to the more frequently asked questions that have arisen from the removal of COVID restrictions.
An employer could have a policy of asking an employee who has or may have COVID-19 not to come to the workplace. However, the employer would still be subject to its contractual obligations and would need to pay the employee the appropriate amount according to the contract.
If the employee was able to work from home and was well enough to do so, then they would be entitled to their normal pay. An employee who is not able to work from home but is not too unwell, and would otherwise have been able to attend work, would also be entitled to their normal contractual pay. This is because they are not attending work at the employer’s request. Although in some cases this pay may be referred to by some employers as ‘sick pay’, it should not be offset against the employee’s occupational sick pay entitlement, nor should it be treated as sickness absence under the employer’s sickness absence policy.
For information on the treatment of COVID-19 sickness absence please see the next question.
In order to try to minimise absences in circumstances where an employee has some symptoms of a respiratory infection, but has not yet had a COVID-19 test, employers may wish to consider having a supply of Lateral Flow (LFD) tests to provide to employees. That way, employers could be more confident that the worker has COVID-19 and they are not unnecessarily asking them not to come to the workplace. Tests could also be provided to workers who do test positive so that they can take a test from day 5 onwards, to see if they could safely come back to the workplace. Although there will be a cost to this provision, it will be less than paying sick pay unnecessarily.
The treatment of COVID absence has varied across employers. However, if an employee with COVID-19 is too sick to work whether at home or otherwise, then unless otherwise agreed at a local level the employee would normally be entitled to be paid in accordance with the employee’s normal occupational sick pay entitlement.
In terms of sickness absence management policies, at the start of the pandemic, the NJC for Local Government Services (Green Book) issued a joint circular on 6 March 2020 which provided that “Given the exceptional circumstances, employers may wish to suspend targets or triggers in occupational sickness policies for any absences connected with coronavirus.” This suggestion was made to address the danger that employees who may have the infection may come to work if they were at risk of being subject to a sickness absence management process. At the time of the outbreak of COVID-19, the management of the virus and the removal of disincentives to following isolation advice were seen as more important than using sickness absence management processes. As part of the development of its policy on living with COVID-19, employers may wish to consider whether or not it is still appropriate to discount the period of sickness absence due to the COVID infection itself (i.e. usually a 10-day period or less) in relation to triggers.
The current Government advice for people with COVID and their contacts provides that household contacts of an infected person should limit close contact with others especially in crowded, enclosed or poorly ventilated areas.
An employer should consider taking steps to either allow the employee to work at home or ensure that the workplace provides a suitable environment in which they can work safely with others. If neither of these options is possible, an employer may consider whether or not the employee should attend the workplace or remain at home on paid leave, taking into account all the circumstances of the case. In many cases the conclusion will be the employee should still attend work if they have no symptoms. However, if because of the particular circumstances the employer did decide that the employee should remain at home, the employee would be entitled to their normal contractual pay. This is due to the fact that the employer still needs to comply with its contractual obligation to pay the employee even if it decides that it is not going to allow the employee to work. In order to minimise absences, an employer may want to consider providing the employee with Lateral Flow (LFD) tests, as if the employee continues to test negative, the employer may well decide that the employee can attend work.
New guidance has been published on testing in adult social care settings, with workers who have COVID symptoms now advised to take two LFD tests 48 hours apart. Details of what to do if a worker tests positive for COVID can be found under “If a staff member receives a positive lateral flow or PCR test result” in the COVID-19 supplement to the infection prevention and control resource for adult social care. A summary of other changes to guidance that have been made in relation to adult social care settings has also been published.
There may be some circumstances where an employer still wants its employees to continue to take tests, other than in adult social care settings (where it is already mandatory). If this is the case, it would be reasonable to expect the employer to either provide the tests or reimburse employees for the cost of obtaining them.
The term clinically extremely vulnerable is now no longer used. Government advice for those who were previously considered extremely vulnerable is that most are no longer at substantially greater risk than the general population and they should follow the guidance which applies to the general public, as well as any further advice they receive from their medical practitioner. However, the Government does recommend that anyone with an underlying health condition takes care to avoid coughs, colds and other respiratory illnesses.
However, there is a small group which is still at higher risk from the virus due to having either a weakened immune system or another specific medical condition. There is specific guidance for this group. Employers who employ anyone in this group should take into account individual circumstances, including advice from the individual’s medical practitioner, when determining what steps need to be put in place to allow the individual to continue to work safely.
The position in Wales can be found on the Welsh Government website.
The starting point is that the employee’s contract will normally contain a requirement for the employee to work on the employer’s premises, so on the face of it there is an express contractual requirement which the employer can seek to rely on. However, whether seeking to enforce that requirement is reasonable and lawful will depend on a number of factors, including importantly the employer’s reasons for the request and the employee’s reasons for the refusal.
The employer’s reasons for seeking a return will normally be linked to service delivery and business need. For example, it may be that a service can be delivered most effectively if the relevant employee is on the employer’s premises, or team meetings would be more productive as everyone is in the office on the same day. However, this has to be seen in the context that in many cases the employee is likely to have been working effectively at home since March 2020. The employer should explain therefore why the position has changed. That may be for example because the rest of a team are returning or have returned, or services have moved back to a face-to-face delivery model, rather than an online model. It may also be because there is evidence that work performed during the pandemic has been demonstrably less efficient and productive than working from an office.
In the case of employees with less experience or in more junior roles, the employer may want them to be on the premises for supervisory or training reasons. A greater proportion of those employees may be younger, and so the question of indirect age discrimination could arise. However, if it does arise, it may be that the requirement could be justified on the basis that it is a proportionate means of achieving the employer’s service delivery and business needs.
Turning then to the employee’s reasons for not wanting to return. These may be due to concerns around how safe the workplace is from a COVID-19 point of view. Provided the employer can show that it has taken all the appropriate health and safety measures, then it should normally be possible for the employer to insist on a return. If though the employee has an underlying health condition which means they are vulnerable to COVID-19 and/or they cannot be vaccinated, then special care should be taken to try to accommodate the employee continuing to work at home, especially as they may have a disability for the purposes of the Equality Act 2010. In that case, the duty to make reasonable adjustments arises. In any event, aside from COVID-19 issues, those with a disability may have found that there were advantages for their wellbeing and ability to perform work from home. Again, therefore the question arises of whether it is a reasonable adjustment to allow the employee to continue to work at home.
Another consideration is that any employee who has more than 26 weeks’ service has the right to make a flexible working request under section 80F of the Employment Rights Act 1996, which could include a request to continue working from home. Although employers do not have to grant such requests, they must consider them and follow the appropriate procedure (see the Acas Code on handling flexible working requests).
If this has been done, but the individual still refuses to attend or perform the task then this may constitute unauthorised absence or partial performance (ie where they are only prepared to carry out certain tasks rather than their full range of duties). This may be a disciplinary issue, which may justify withdrawal of pay. The manager should explain the individual’s contractual obligations and the consequences of refusing to work. If there is still no change in the individual’s position, immediate advice should be sought from HR to ensure an appropriate and consistent approach can be taken.
Further information on the employment law implications of returning to the workplace and hybrid models of working and are set out in Advisory Bulletin 691.
Long COVID takes a variety of forms but from an employment perspective the underlying feature is likely to be that the employee will be unable to work or perform all of their duties for periods of time. That means that it will often be appropriate to manage such cases under the employer’s sickness policies, albeit employers will want to approach such cases sensitively, taking into account the medical evidence, advice from occupational health and the employee’s views. In terms of medical evidence and occupational health advice, it may be that as long COVID is a relatively new condition about which little is known that the evidence and advice will not be as clear as you might normally expect. In such cases, the employer will simply have to act on what evidence and advice there is. In any event, employers may also want to consider exercising their discretion to extend sick pay, where that might be appropriate.
As with all long-term or possibly persistent intermittent sickness cases, employers will want to consider whether adjustments can be made to the employee’s role to enable them to perform it on a full or part-time basis. Alternatively, the employer may need to consider whether the employee could be redeployed to another role that they would be able to perform, perhaps because there was greater scope for home working or flexible hours. This is particularly important because as long COVID is a long-term illness, it may well be that the employee has a disability within the meaning of the Equality Act 2010. Therefore, employers may need to show that they have fulfilled their duties under the Act, including the duty to make reasonable adjustments. Ultimately though as with all long-term sickness cases it may be necessary for the employer to consider terminating the employee’s employment, but before doing so the employer will want to ensure it has taken all the steps it reasonably can before dismissing.
The action will depend on the reasonableness of the request, taking into account the employer’s need for the employee to take the test, balanced against the reason for the employee’s refusal. Where the employer needs the employee to take the test for COVID-19 related health and safety reasons where those concerns cannot be reasonably addressed through other methods such as social distancing, for example where a person works in a care home, then the employer’s request is likely to be considered reasonable. Before taking any formal action though, the employer should discuss with the employee their reasons for refusing the request, taking care to explain in full why the employer needs them to take the test and reassuring them that the results of the test will so far as is possible be kept confidential and that the employer will comply with data protection requirements. During the time that those discussions are taking place the employer will in most cases need to ask the employee not to attend the workplace, albeit they should remain on full pay. In most cases though those discussions should be held without delay, bearing in mind the employee would otherwise have been attending the workplace.
If the employee does not provide any valid reason for refusing to take the test, for example their refusal is based on a belief that such tests are not otherwise mandatory or that taking such tests is uncomfortable, then the employer may need to consider moving to formal disciplinary action, suspending the employee on full pay during the process. The results of that process may then result in the employee being dismissed, should the employee continue to refuse to take a test without good reason. Where though the employee does provide a valid reason for not taking a test, such as where occupational health or a GP confirms they have a health condition preventing them taking such a test, then the employer should explore whether the employee could be redeployed to another role where COVID-related health and safety concerns can be addressed through other methods. Employers may need to consider their responsibilities under the Equality Act 2010 in this situation too. If though they cannot be redeployed, the employer might then need to consider terminating their employment, but that would not be for disciplinary reasons. Instead, termination should be on notice with full pay, albeit during the notice period the employee will not be able to attend the workplace. We would strongly recommend that employers take early advice in this scenario. Finally, if an employer is asking an employee to take a test in circumstances where COVID-19 related health and safety concerns can be addressed through other methods and/or where the employee’s role does not involve contact with those in a vulnerable group then the employer is unlikely to be able to take action against that employee, unless particular circumstances meant the employer could point to another valid reason justifying that request. In all cases though the key to resolving this issue will normally be resolved at the outset through clear and transparent discussions with employees and trade union representatives explaining the need for a test.
The Information Commissioner’s Office (ICO) has published guidance on addressing the data protection issues where employers intend to ask for and record the vaccine status of workers. A key part of that advice is that in order for such recording to be lawful the employer’s reason for doing so must be transparent and necessary.
It is recommended that employers read the ICO’s guidance in full when considering whether they can ask for and record employee’s vaccination status.