The risks from Covid-19 are still very much present in the workplace and it is important to remember that employers have a duty of care towards their employees to protect the health and safety of their workforce. This information is being continually checked and updated.
Coronavirus (Covid-19)
The World Health Organization (WHO) explains that coronaviruses are a large family of viruses that cause illness ranging from the common cold to more severe diseases such as SARS (Severe Acute Respiratory Syndrome). This particular episode has been named “Covid-19” and appeared in December 2019 in Wuhan, China.
The symptoms
The symptoms include a fever, cough, shortness of breath and loss or change of sense of smell or taste. Some people may suffer from a mild illness and recover easily, while in other cases, infection can progress to pneumonia. Reports suggest that the elderly, those with weakened immune systems, diabetes, cancer and chronic lung disease are the most susceptible to serious illness and death. Symptoms can appear in as few as two days after infection or as long as 14 days.
The virus
The virus is said to most likely spread from person to person through:
- direct contact with a person while they are infectious
- contact with droplets when an infected person coughs or sneezes
- touching objects or surface that were contaminated by droplets from secretions coughed or sneezed from an infected person with a confirmed infection.
Employer considerations
Latest Government guidance
The advice is under constant review and is subject to change. You can keep up to date on latest Government developments here.
Duty of care
Employers have a duty of care towards their employees which includes not exposing them to unnecessary risk. In this case, that may include not putting them in a position in which they could become infected by the virus without taking all reasonable precautions.
Your duty of care, where coronavirus is concerned, may differ depending on an employee’s specific circumstances, for example, if they are in the risk category, for example over 70 or if they have underlying conditions.
Wellbeing
In addition to having a duty of care to protect health and safety, you also need to consider their wellbeing. Consider any wellbeing initiatives you have and remind employees of them, for example, an Employee Assistance Programme.
Give employees the facts
The risk of becoming infected will differ depending on personal circumstances but it is important to convey to employees the reality of the situation to keep concern proportionate to the risk and encourage good hygiene.
Travel advice
For the latest travel advice, you can keep up to date with the latest Government guidance here.
If an employee has a confirmed case of coronavirus
Your normal sickness absence and pay policy will apply to employees who have coronavirus, as will payments of SSP. For sickness absences related to Covid, there are no waiting days so payments can be made from day one, where a period of incapacity for work is created.
See our Statutory Sick Pay topic for further details.
If an employee has returned from an affected area, then develops symptoms and stays at home
This is best treated as sickness absence due to the display of symptoms and your normal policies will apply. You may wish to consider other options such as working from home as a temporary measure while the employee self-isolates (see above).
Employers who have concerns about an employee’s exposure
Where you have concerns about a non-symptomatic employee (for example, it is known or suspected that the employee has had contact with someone known to have the virus but does not live with them) then the best advice is to follow the Government and NHS advice and advise the employee to self-isolate as needed.
Self-isolation, shielding and pay
The Government is advising that certain people should self-isolate for certain periods.
Those who experience even minor symptoms should self-isolate for 10 days; those who live with someone who develops symptoms should self-isolate for 10 days, unless they have been double vaccinated, are under 18, or are medically exempt from vaccination (unless the contact is with the Omicron variant, in which case these exemptions do not apply). If they experience symptoms, they must comply with a further 10-day period from the point their symptoms start..
Those who receive a notification from a track and trace service that they have been in close contact with someone who has tested positive for coronavirus are also required to self-isolate for 10 days, unless they have been double vaccinated, are under 18, or are medically exempt from vaccination, although they are recommended to take a PCR test as soon as possible. That is, unless the contact is with the Omicron variant, in which case these exemptions do not apply
In addition, those who have been advised by a registered medical practitioner (or other person or body permitted to make the notification) that they are to undergo a surgical or other hospital procedure and have been advised to self-isolate for a period of up to 14 days before their hospital admission, should do so.
On 28 September, the Health Protection (Coronavirus Restrictions) (Self-isolation) (England) Regulations 2020 came into force which introduced various criminal offences in respect of self-isolation. It is now an offence for an employer to knowingly allow a worker to attend any place for any purpose relating to their employment during the designated period of self-isolation. Breaches of this law can result in a fixed penalty notice of £1000 for the first offence increasing to £10,000 for repeated offences.
The terminology here is important; a breach is not restricted to an employer’s requirement for the employee to attend the workplace, or even a request. It is also not restricted to attendance at the workplace, but covers attendance at any place for any purpose relating to their employment.
The employer must be aware of the employee’s need to self-isolate, and of any breach of the self-isolation requirement by the employee. Workers are now under a legal obligation to inform their employer of the need to self-isolate; however, this only applies where the employee is not already working from the place they are self-isolating which is likely to be their home. Therefore, this will not apply when the employee is already working from home.
Employers may wish to confirm this stance to their employees by reminding them of the need to inform the employer of the requirement to self-isolate, and that they are prohibited from attending the workplace, or any other place for the purposes of work, during the self-isolation period.
Emergency legislation put in place requires statutory sick pay (SSP) to be paid to those self-isolating as described above in order to prevent the infection or spread of the virus in accordance with public health guidance, who is then unable to work as a result, providing they meet the other eligibility criteria.
Where the first day of absence was 13 March 2020 or later, SSP is payable from day one for anyone self-isolating, provided that other eligibility criteria is met including that the employee earns at least the lower earnings limit, and has been absent for at least 4 days in order to create a “period of incapacity for work”.
Those advised to shield on or after 16 April 2020 were entitled to SSP. Shielding was paused in August and officially brought to an end on 15 September 2021. Moving forward, centralised guidance on isolation for clinically vulnerable people will not be issued.
In addition, measures have been put in place for employees to obtain medical evidence from NHS 111 rather than their own GP. “Isolation notes” will provide you with evidence that your employee has been advised to self-isolate. You may ask for this document to evidence absence of over seven days, in the same way as with a normal “fit note” from the GP. As with normal sickness absence, no isolation notice will be issued for the first seven days, during which employees can self-certify.
The notes can be accessed through the NHS website and NHS 111 online. The note will be emailed to the employee, or in some cases, directly to you.
In respect of those who have received a notification informing them of close contact with someone who has tested positive for coronavirus, the notification they received can be used as evidence.
Employers may be able to agree a period of homeworking during self-isolation or shielding provided the employee remains fit for work, or annual leave, in which case full pay will be maintained.
Employees who are pregnant
Current guidance outlines that pregnant employees should be considered as clinically vulnerable. Employers already have a legal duty to assess the risks that the workplace could pose to pregnant employees and must take steps to mitigate these. The threat of the coronavirus must therefore also be taken into account when decisions are made regarding whether pregnant employees can continue to conduct their role safely.
Employees who refuse to come to work due to concerns
From 13 December 2021, Government advice is that those who can work from home, should do. For those who cannot, if an employee is worried about catching the virus and refuses to attend work, Acas suggests listening to the employee’s concerns and offering reassurance. Your response to this will depend on the actual risk of catching the virus at work. It will be different for every employer and will depend on specific circumstances including whether anyone in the workforce has already been diagnosed or there is another real risk of exposure. You may decide to offer a period of paid annual leave or unpaid leave or allow the employee to work from home where this is feasible. Your response should be reasonable to the specific situation.
Government advice in Scotland and Wales is now to encourage businesses to allow staff to work from home where necessary and appropriate. In England, the Government stance from 13 December is that employees should work from home where they are able to do so, unless physical or mental difficulties mean this is deemed inappropriate, or where there is a particularly difficult home environment.
Foreign travel and quarantine
The rules for international arrivals into the UK are being regularly reviewed and updated by the Government, and the most up-to-date information is available on the Government website.
As it stands on 9 December 2021, the following rules apply.
Red list countries
Only the following may enter England from a red list country (or where the traveller has been in a red list country within 10 days of arrival):
- a British or Irish National
- those with residence rights in the UK.
The list of countries on the red list is regularly reviewed and updated. The most up-to-date list is available on the Government website.
The rules for red list countries apply to all travellers, regardless of vaccination status.
Before arrival from a red list country
- take a Covid-19 test in the two days before travel to England
- book a quarantine hotel package, including two Covid-19 tests
- complete a passenger locator form.
On arrival
- Quarantine in a managed hotel, and take two Covid-19 tests.
Travelling with children
- Children aged 12 to 17 must take a Covid-19 test in the two days before travel to England.
- On arrival in England children aged 5 to 17 must quarantine in a managed hotel for 10 full days and take two Covid-19 tests.
- Children aged 4 or under do not have to take any travel tests but must enter managed quarantine.
Transiting through a red list country on the way to England
Whether the red list rules need to be followed as a result of a transit stop in a red list country depends on what happens during the stop.
Air passengers
Where border control is passed at the airport during the transit stop.
Ship passengers
Where:
- the traveller disembarks from the ship
- other passengers disembark then re-board the ship
- new passengers get onto the ship.
Train passengers
If the traveller leaves the train.
Private vehicles or coaches travelling through red list countries or territories
The rules of the countries and territories driven through apply. Where the traveller has driven through a red list country, then the red list rules must be followed on arrival in England, whether the vehicle stops or not.
All other countries
Fully vaccinated
Before travel to England:
- take a Covid-19 test — to be taken in the two days before travel to England
- book and pay for a Covid-19 PCR test — to be taken after arrival before the end of day 2
- complete a passenger locator form — to be completed in the 48 hours before arrival.
Even where the stay in England is for less than two days, a test must be booked and paid for on day 2. Travellers must quarantine until either they leave England or receive a negative test.
On arrival, all vaccinated travellers must quarantine at home or other accommodation until a negative test result is received (or 14 days, whichever is sooner). If a positive result is received, a full 10-day quarantine must be completed.
The fully vaccinated rules apply for:
- under 18s
- those taking part in an approved Covid-19 vaccine trial in the UK or the USA (US residents only for USA trials), or a phase 2 or 3 vaccine trial that is regulated by the EMA or SRA
- those unable to have a Covid-19 vaccination for a medical reason which has been approved by a clinician under the medical exemptions process, and resident in England.
Proving vaccination status
- NHS Covid Pass for England and Wales
- NHS Scotland Covid Status app
- CovidCert NI in Northern Ireland.
Paper certificates are also available.
There are different ways to prove vaccination status for vaccinations outside of the UK.
Not vaccinated
Before travel to England:
- take a Covid-19 test — to be taken in the two days before travel to England
- book and pay for day 2 and day 8 Covid-19 PCR tests — to be taken after arrival in England
- complete a passenger locator form — to be completed in the 48 hours before arrival in England.
After arrival:
- quarantine at home or in the place they are staying for 10 full days, regardless of test results
- take pre-booked Covid-19 PCR tests on or before day 2 and the second test on or after day 8.
Even where the stay in England is for less than two days, a test must be booked and paid for on day 2 and day 8.
Test to Release scheme
It is possible to pay privately for a test and be released from quarantine early.
Travelling with children
Children aged 4 and under do not have to take any Covid-19 travel tests.
Children aged 12 to 17 must take a Covid-19 test in the two days before travel to England.
Children aged 5 to 17 have to follow the testing and quarantine rules for people who qualify as fully vaccinated on arrival in England.
This means that they have to quarantine on arrival and take a PCR test on or before day 2.
Ireland, the UK, the Channel Islands and the Isle of Man
The following does not apply when travelling from the above:
- complete a passenger locator form
- take any Covid-19 tests
- quarantine on arrival in England.
Statutory sick pay is not payable to those who self-isolate on return from overseas.
Closure of business
Various lockdowns and business closures were in effect for much of 2020, and into 2021.
From 10 December 2021 “Plan B” is applied in England. This means that with effect from Friday 10 December, masks must be worn in most public venues, including theatres and cinemas, unless someone is medically exempt. This will not apply in premises where people are eating or exercising.
From Monday 13 December, guidance to work from home wherever this is possible will be reintroduced.
By Wednesday 15 December, Covid passes will become mandatory for nightclubs, unseated indoor venues with more than 500 people, unseated outdoor venues with more than 5000 people and any venue with more than 10,000 people.
Two doses will be sufficient for a Covid pass, as will a negative lateral flow test, but this requirement will be kept under review as the booster programme is rolled out.
In Wales, employers (and other businesses) must undertake a bespoke coronavirus risk assessment and take reasonable measures to minimise exposure to, and the spread of, coronavirus based on that bespoke risk assessment. Also, adults and children over 12 must wear face-coverings in indoor public places, with the exception of hospitality settings such as restaurants, pubs, cafes or nightclubs, or for solemnisation of a marriage, formation of a civil partnership or an alternative wedding ceremonies.
In Scotland, face coverings continue to be required in most indoor place, and employers should follow relevant guidance to keep their staff safe.
Furlough and the Job Retention Scheme
The Government announced the Job Retention Scheme on 20 March 2020. The Scheme ran until the end of September 2021.
The Job Support Scheme
The Job Support Scheme was due to commence on 1 November after the end of the Job Retention Scheme. However, due to the extension of the Job Retention Scheme, the Job Support Scheme will not now be used.
If the employer continue to have issues providing work after furlough
Lay-off or short-time working may be an appropriate alternative. Employees who are ready and willing to work but are not provided with work (as would be the case with a temporary closure), or reduced work, can be placed on lay-off or short-time working. Lay-off must be with full pay unless there is a provision within the contract for lay-off without pay (subject to the payment of statutory guarantee pay for employees with at least one month’s service at the time of lay-off). If there is no contractual provision, you can attempt to agree with employees a period of unpaid lay-off.
This may also occur when the business itself has not taken the decision to close, but where, for example, the landlord of the building from which the business operates has decided to close its doors, meaning that no one can enter. In this situation, employers should consider whether it can temporarily move to an alternative location or permit its employees to work from home. If no other alternative can be found, a period of lay-off may be required.
Closure of schools
School closures have been in place from time to time as part of the pandemic response, but currently schools are open for all children.
NHS test and trace service
On 28 May 2020, the NHS test and trace service was launched in England. The service:
- provides testing for anyone who has symptoms of coronavirus to find out if they have the virus
- gets in touch with anyone who has had a positive test result to help them share information about any close recent contacts they have had
- alerts those contacts, where necessary, and notifies them they need to self-isolate to help stop the spread of the virus.
The Government states that, by following instructions to self-isolate, people who have had close recent contact with someone with coronavirus will be protecting their family, friends, colleagues and other people around them, and will play a direct role in stopping the spread of the virus.
When someone first develops symptoms and orders a test, they will be encouraged to alert the people that they have had close contact with in the 48 hours before symptoms started. If any of those close contacts are colleagues, the person who has developed symptoms may wish to (but is not obliged to) ask their employer to alert those colleagues. At that stage, those close contacts are not advised to self-isolate, but they:
- must avoid individuals who are at high-risk of contracting coronavirus, for example, because they have pre-existing medical conditions, such as respiratory issues
- must take extra care in practising social distancing and good hygiene and in watching out for symptoms.
“Close contact” means:
- having face-to-face contact with someone (less than 1 metre away)
- spending more than 15 minutes within 2 metres of someone
- travelling in a car or other small vehicle with someone (even on a short journey) or close to them on a plane.
Those who test positive will be asked, via the service, whether they have had any such close contact in the 48 hours before they developed symptoms and the time since they developed symptoms.
The service will then contact anyone they report as having had close contact with and tell them to begin self-isolation for 10 days from their last contact with the person who has tested positive, even if they do not feel unwell, unless they are fully vaccinated, under 18, or medically exempt from vaccination (these exemptions do not apply if there has been contact with the Omicron variant).
The practical effect of this service is that many more individuals are likely to self-isolate. In addition, large parts of a workforce, or an entire workforce, may receive an alert telling them they should self-isolate because one member of the workforce has tested positive for coronavirus. Employers can help to combat this by ensuring that employees work from home where possible, or implementing strict social distancing and hygiene measures in the workplace where home working is not possible.
Self-isolation is a legal duty and anyone under the duty who is found not to be self-isolating faces fines starting at £1000 and increasing to £10,000 for repeat offenders.
The Government has put together guidance for employers, which stresses that their role in the system is vital by:
- making their workplaces as safe as possible
- encouraging workers to heed any notifications to self-isolate and supporting them when in isolation.
It acknowledges that, although this may seem disruptive for businesses, it is less disruptive than an outbreak of coronavirus in the workplace will be, and far less disruptive than periods in lockdown.
Employers should support employees who need to self-isolate and must not ask them to attend the workplace.
If an employee needs to self-isolate, employers should consider whether they are able to work from home. This might include finding alternative work that can be completed at home during the period of self-isolation.
Employees who cannot work from home will be entitled to receive SSP in line with the guidance on self-isolation given above due to further legislative amendments. SSP is not payable to those who are required to quarantine on return to the UK from overseas. Alternatively, the employer may agree that a period of annual leave is to be taken so that full pay is maintained, or another form of paid leave that is available to the employee.
Giving options to ensure full pay is maintained may be particularly important due to the possibility that an employee may be reluctant to self-isolate if it means a drop in pay. Employers may wish to strongly encourage employees who receive a notification to make this known, and to self-isolate, in order to protect the rest of the workforce.
The NHS test and trace service will provide a notification that can be used as evidence that someone has been told to self-isolate.
A similar scheme, called “test and protect” is in place in Scotland.
Maintaining records of staff
On 18 September 2020, the Government changed its guidance surrounding the maintaining of records to track who is visiting venues within certain venues in England, making it a legal requirement for designated venues to collect contact details for the purposes of NHS Test and Trace in England, alongside displaying official NHS QR code posters. This has now been repealed, but businesses and venues remain strongly encouraged to continue to collect this data, especially in the following sectors:
- hospitality
- tourism and leisure
- close contact services
- facilities provided by local authorities.
Surge testing for new variants
Surge testing is increased testing (including door-to-door testing in some areas) of all residents and enhanced contact tracing in specific locations in England and can look different depending on assessment of local requirements.
There are currently no areas affected by this, but this is subject to change.
Wider effect on employment law
Gender pay gap reporting
The Government suspended the obligation to report on the gender pay gap in 2020 due to the coronavirus. Companies with 250 or more employees are required to submit their gender pay gap information once a year; for the private sector, the deadline is 4 April; for public sector, it is 30 March. In recognition of the extra pressure placed on businesses at this time, there was no requirement to publish the data in 2020.
The requirement to publish data returns for 2021. This means reporting on data from the snapshot date of 5 April 2020 (31 March 2020 for public sector). The Government will not consider implementing enforcement action for failure to provide 2021’s report until October 2021; this effectively gives employers a further six months past the usual deadlines for reporting data.
The Government has confirmed the following in relation to 2021 reports:
- employees who were on furlough on the snapshot date are counted when determining whether the 250-employee threshold is met
- employees on furlough on the snapshot date are not to be included in calculations on hourly pay
- but employees on furlough on the snapshot date are to be included in calculations on bonuses.
Because employees who are not in receipt of full pay on the snapshot date are excluded from the reporting pool for calculations on hourly pay, the pool may be a lot smaller than usual due to the fact that a significant number of employees in the UK would have been on furlough on the snapshot date. Employers may find that the resulting gender pay gap in hourly pay is quite different from previous years. It is important, therefore, for employers to use the accompanying narrative to explain any impact on the results caused by coronavirus.
Annual leave
The laws on annual leave have been amended to allow more flexibility on the carry over of leave. Previously, four weeks of annual leave was exclusive to the year in which it was accrued, meaning it could not be carried over except where it could not be taken because of sickness absence or annual leave. The remaining 1.6 weeks of leave could be carried over to the next leave year subject to the employer’s agreement.
The restriction on carrying over the four weeks of leave has been lifted for circumstances where it was not reasonably practicable for a worker to take some or all of their leave as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society). Workers now have the right to carry forward leave accrued in this leave year to the next two leave years. The carry over of the 1.6 weeks’ leave is still subject to agreement from the employer.
The rules on pay in lieu of accrued holiday on termination of employment have also been amended. Pay in lieu should include an element reflecting leave which was carried over in this way but remains untaken at termination.
Modern slavery statements
The Government has relaxed the rules around compliance with modern slavery requirements. An updated Government guide makes clear that businesses must continue their activity to identify and address risks of modern slavery in their operations and supply chains but recognises the challenges presented by the virus in publishing their statement within the usual timeframe. It notes “reduced staff capacity” as one such challenge. It states that “businesses which need to delay the publication of their modern slavery statement by up to six months due to coronavirus-related pressures will not be penalised”. The reason for any delay to the publication should be set out in the delayed statement.
Statements are required from all businesses who have an annual turnover of at least £36 million, and must normally be published within six months of the end of the company’s financial year.
Employer checklist
- Move to home working if it is possible to do so, from 13 December 2021.
- Assess the risk of exposure in your business operations including any overseas workplaces.
- Remind yourself of your business contingency plan/pandemic contingency plan.
- Send communication to all employees reminding them of good hygiene measures.
- Ensure there are sufficient soap supplies available and consider providing tissues and hand sanitiser to the workforce where the workplace is permitted to remain open.
- Speak with those in charge of cleaning the workplace and ask for frequent deep cleans.
- Ask employees to keep you informed of any overseas holiday travel so you can manage their return.
- Remind employees of your annual leave cancellation procedures.
- Decide how you will deal with pay during self-isolation, eg will it be no pay, sick pay or full pay?
- Create a work contingency plan in case key members of the workforce are absent.
- Ensure managers are aware of coronavirus symptoms so they can spot it quickly.
- Check whether you have a lay off with reduce pay clause in place in the event that you need to close the business temporarily.
- Remind employees of any employee assistance programme available to them if they have general concerns about virus.
