Living with Covid-19: Workplace Implications

Article

04 April, 2022

There is no longer a legal requirement to self-isolate following a positive COVID-19 test and individuals instead will have the autonomy to exercise their own personal responsibility on whether to isolate. In terms of the consequences of this for the workplace, it will be up to employers to implement their own guidelines and policies on self-isolation and workplace attendance. We have set out below some guidance on the issues that you may need to think about.

What should our policy be if an employee tests positive for COVID-19?

In order to comply with health and safety duties of other employees, and to prevent an outbreak within the workplace, it would be advisable to encourage employees with COVID-19 to stay at home for a minimum isolation period of 5 days and to only return to the office when they have had two negative test results.

Do employees have to tell us if they have tested positive?

Employees are no longer under a legal obligation to inform you that they have tested positive. It would be advisable however to make it clear to staff that you do still require positive cases to be reported as has been the case to date. We would recommend that you make it clear that the reasons for this are in order to protect the health safety and wellbeing of the wider workforce and their families and to prevent the spread of COVID-19 unnecessarily in the workplace.

What do we have to pay an employee if they are self-isolating after testing positive?

It will be important to think about what pay you are prepared to offer staff who may have to self-isolate, particularly if you want to encourage employees to self-isolate and stay away from the workplace despite no longer being legally required to.

If the employee is well enough to work they can be asked to work from home and paid as normal, providing their role allows this.

Employees with COVID-19 who cannot work from home are now only entitled to receive SSP from day 4 of their absence, and not day 1 as was previously the case. You might therefore want to consider bearing the cost of continuing to pay SSP from day 1.

Depending on how strongly you feel about this you could offer full sick pay to incentivise staff to stay away but if you are going down this route you are going have to think about what evidence you will require of a positive case (in order to prevent anyone from abusing the system).

Unvaccinated close contacts are no longer required to test or self-isolate and SSP is also no longer payable for any close contacts. If an unvaccinated close contact employee cannot work from home, it will be difficult to stop them from attending the workplace without their agreement, and any enforced period would need to be paid at full pay.

What if a positive testing employee refuses to self-isolate?

As employees are no longer under a legal obligation to self-isolate, if an employee chooses not to self-isolate and presents themselves as ready, able and willing to work, they are entitled to be paid their normal salary if the company does not wish for them to attend at work, and they cannot work from home.

Can we continue to test for positive cases?

You can, if you want to, continue to test for positive cases within the workplace however you will need to bear the cost of doing so after universal free testing ends on 1 April 2022. There are also data protection implications in processing data relating to an employee's COVID-19 status.

What is an employee entitled to be paid when they refuse to attend work due to fears about COVID-19 and are unable to work from home?

If the absence is unauthorised, an employee will not be entitled to their pay as they are not willing to attend work. The context of refusal to attend work would need to be closely considered before deciding whether to withhold pay, such as considering if the employee is refusing to work for Health and Safety reasons or whether there may be reasons that could lead to discrimination, as to why pay should not be withheld.