As we all learn to live safely with COVID-19, employers will need to consider how best to support their employees’ health, safety, and well-being in the workplace in accordance with their legal obligations. Here we look at some practical steps employers can take.
Is there any guidance about what employers should be doing?
Yes, the government has issued some guidance which can be found in "Guidance for people with symptoms of a respiratory infection including COVID-19, or a positive test result for COVID-19" and "Guidance on reducing the spread of respiratory infections, including COVID-19, in the workplace".
If an employee tests positive for COVID-19 government guidance suggests that they should try to stay at home and avoid contact with others for five days. There is, however, no legal requirement to do so. Whilst there is also no longer a legal requirement for every business to consider COVID-19 in their risk assessment, or indeed to have specific COVID-19 mitigation measures in place, it remains good practice to do so. This will be particularly important if there are individuals whose weakened immune system means they are at risk of serious illness from COVID-19. Other actions to reduce the spread of COVID-19 (and other respiratory infections) can include encouraging and enabling vaccination, maximising ventilation, maintaining a clean workplace and hand hygiene,
encouraging mask-wearing in confined spaces, and so on.
Can we require employees to tell us if they have tested positive for COVID-19?
Employers should consider having a COVID-19 policy in place which requires their employees to disclose if they have tested positive for COVID-19, or are experiencing symptoms. The policy should emphasise that this is essential for the health, safety, and well-being of all employees as well as the company’s clients, customers, etc. If an employee fails to report a positive test the policy can state that this would be treated as a disciplinary matter. In practice, however, it may be very difficult to know if someone has failed to disclose a positive COVID-19 test result, so any policy should reinforce and remind employees of their obligations to keep their colleagues safe. Fostering an environment where they feel comfortable disclosing that they have symptoms of COVID-19 or have tested positive will be important in preventing people from coming to work given that there is no legal requirement for them to remain at home.
Can we require an employee to remain at home if they test positive for COVID-19?
Yes, an employer can have a policy in place that requires any employee who tested positive to work from home for up to five days after the test was taken. If they cannot work from home then the situation may be more difficult if employees are faced with receiving only statutory sick pay from their fourth day of absence, or if they are asymptomatic and so not unwell themselves. The best way for an employer to ensure its employees do not attend the workplace is to continue paying them their normal salary. This will also avoid the risk of unlawful deductions claims. Withholding pay may discourage employees from identifying a risk that they may have been infected and indirectly lead to an increased risk of infection in the workplace.
What if an employee refuses to remain at home?
If the employer has a policy in place requiring all employees who test positive for COVID-19 to remain at home on full pay for up to five days and an employee insists on returning to the workplace, the employer can take disciplinary action in accordance with its relevant policy. We would however recommend seeking specific legal advice before subjecting any employees to disciplinary action in this context, as these scenarios are likely to be fact-specific and there may be other legal considerations to take into account before proceeding.
If an employer requires an employee to take a lateral flow test when he/she has a symptom, should the employer pay for the test?
Most people will not be able to access a free COVID-19 test (unless they have a specific health condition that makes them eligible). Individuals might have some lateral flow kits at home but if their employer requires them to take a test then the employer will need to pay for it. Tests can be bought from some pharmacies, retailers, or various private health clinics such as Randox.
What should a COVID-19 policy include?
The policy should set out the business’s expectations of employees in preventing and managing the spread of COVID-19 at work. Staff should be aware of the latest NHS guidance on common COVID-19 symptoms so that action such as testing can be taken early on. The policy should include a duty to disclose a positive COVID-19 test, information about homeworking, taking sick leave, and what the impact on pay would be (if any). The policy can also encourage those with weakened immune systems or health conditions that place them at a higher risk to speak with HR/their line manager if they have specific concerns. There is separate government guidance for those who have been informed by the NHS that they are at the highest risk. Employers should also keep in mind their duties under the Equality Act 2010 which may be relevant if someone is at increased risk due to disability, age, or pregnancy for example.
We are ready to help support and advise your business. Please get in touch with your usual 3CS contact for further information.