We answer your burning questions about the Return to Work as Covid-19 restrictions continue to ease. This is an ever-changing landscape and if the position changes further we will issue a further update.

1. What is the current advice from the Government on returning to work?

Given the spread of the Omicron Covid-19 variant, the Government has reinstated guidance for employees to work from home where they can. Therefore, where employers require at least some employees to remain working at their premises, they may find it appropriate to adopt a hybrid working policy where employees work a combination of at home and at the workplace. Employers should try and be flexible where practicable.

It will be for the employer to decide how to manage the risks of Covid-19.

2. What does an employer need to do to ensure the workplace is Covid-19 secure?

Throughout the pandemic, employers have been expected to do what is reasonable and necessary to reduce the transmission of Covid-19. To achieve this, employers must undertake a risk assessment of the workplace to identify the risks and consider actions to remove the risk.

Employers should ensure ventilation is considered within the risk assessment as the medical advisors stressed the importance of airflow to reduce the transmission of the virus. If windows need to be kept open to maximise ventilation, this should be balanced with appropriate working temperatures.

Following from the risk assessment, employers should then take action to control the potential spread of the virus. This could be done by adopting reasonable measures and implement policies on the following (but is not limited to):

• frequent cleaning – Employers should consider how often surfaces are cleaned and consider increasing how often this occurs
• hand sanitation – Ensuring hand sanitiser and soap is available to employees
• limit unnecessary contact where possible
• ensure that anyone who is unwell does not attend the workplace and follows the rules on self-isolation
• social distancing and facemasks – there will no longer be a legal requirement; however, employers can still decide to implement a policy if they wish. Employers must have consideration to equality law so must consider those who are medically exempt from wearing a mask.

3. Should employers communicate to employees on returning to work and the new practices in place?

Employers should communicate with employees when they will return to work and the new measures in place. They should ensure that this is communicated clearly and all employees understand the procedures they must follow. Employers should also consider using signage and other methods to remind those entering the workspace of the measures. Some individuals may be apprehensive about returning to work so it is important that employers listen and talk through any concerns raised.

4. Can employers force employees to return to work?

There is guidance for employees to work from home where they can. Where employers require staff on their premises, they can request that employees return to the workplace. It may be more appropriate to consider hybrid working methods or employees working in shifts to help reduce the risk of transmission of Covid-19.

An employee may be able to refuse to return to the workplace if they have concerns about health and safety. The law will protect an employee from detriment if they reasonably believe that going into work would put them in serious and imminent danger. If an employee raises concerns over health and safety issues, this must be taken seriously. An employer may need to reassure an employee of the measures put in place or re-evaluate whether further action needs to be taken to ensure safety in the workplace.

An employee may also raise concerns related to their own health condition or for another personal reason which will need to be carefully considered. If the employee is disabled, the employer has a duty to make reasonable adjustments.

If an employee continues to refuse to go back to work despite appropriate H&S measures in place, the employer could start disciplinary proceedings. It would be advisable to seek legal advice before taking this action.

5. What should an employer do if an employee notifies them they have tested positive or have symptoms of Covid-19?

The employee will need to self-isolate if they have tested positive for Covid-19. It is an offence to force an employee to work anywhere other than where they are self-isolating if they are legally required to self-isolate. A breach of this offence may result in a fine for the employer.

Employers should ensure that employees are not treated differently for needing to take time off for self-isolation and employers should agree with employees how they will return to the workplace safely.

6. Can employers refuse employees to work unless they have had the Covid-19 vaccination?

Creating a policy that does not allow employees to work unless they have been vaccinated should be treated with caution.

Mandatory vaccinations would be intrusive for employees and it could raise serious ethical concerns. The law does not state that individuals must have the vaccine and some people may not be offered the vaccine at all due to health reasons.

If an employee was dismissed or treated differently for not being vaccinated, this could give rise to a range of claims such as discrimination or unfair dismissal.

Legal advice should be sought before introducing a policy on mandatory vaccinations.

7. Can employers encourage employees to get the vaccine?

Employers can encourage employees to have the vaccine and provide advice to employees on where to access health information. Employers can provide support by allowing paid time off for the vaccine appointment or for the side effects caused by the vaccine.

Whilst employers can encourage employees to have the vaccine, they should be careful as to not treat employees any differently if they know they have refused the vaccine.

8. Can employers make employees work from home if they have not been vaccinated?

Requiring employees who are not vaccinated to work from home raises very similar concerns to question 6. This scenario puts those employees who have not been vaccinated at a disadvantage if they cannot work from home effectively.

This type of policy could lead to equality issues and potentially discrimination, especially if an employee cannot have the vaccine for health reasons.

Legal advice should be sought before introducing a policy on mandatory vaccinations.

9. What is the position in the Care Sector on Vaccinations?

On 11 November 2021, it became a legal requirement for all staff and volunteers who work in a care home with residents to be vaccinated.

If care staff refuse to be vaccinated, the employer must consider their options, which may include redeployment to another role within the business that does not require them to be vaccinated. The Government has advised if they cannot facilitate any other option, the Regulations may support a fair dismissal.

Residents of care homes and their family/friends who visit them will not be subject to the new Regulations.

From 1 April 2022, all health and social care workers, including volunteers and NHS staff, will be required to be fully vaccinated against Covid-19.

Please do not hesitate to contact Ashtons Legal for further advice on vaccinations within the care sector.

10. Can an employer obtain data on Covid-19 vaccine status of employees?

To obtain data on employee’s health, under GPDR it must be fair, necessary and relevant for a particular purpose.

The ICO provides guidance on employers obtaining information on employee’s vaccination status. Before asking employees whether they have had the vaccine, employers must be clear on how obtaining this information will be of use to them. It is not enough for employers to obtain this information because they are interested; it must serve a particular purpose.

If an employer has a good and compelling reason for obtaining this information then it may be justified. However, it will depend on the circumstances and the workplace on whether it would be reasonable to obtain data on employee’s vaccination status.

Legal advice should be sought before requesting employees’ health data.

11. An employee has caught Covid-19 from a fellow employee, what does this mean?

Employers have a duty to protect their employees’ health, safety and wellbeing and must do whatever is reasonably practicable to ensure a safe working environment. This duty is implied into employment contracts through the common law. The Covid-19 pandemic has led to unprecedented challenges for businesses in terms of, among other things, trading and safety in the workplace.

If an employee believes that their working environment is unsafe, there is potential for them to claim constructive unfair dismissal, negligence and/or a breach of contract. This is why it is important for employers to ensure that they constantly monitor their health and safety policies ensuring that they contain the most up to date guidance and follow the appropriate Government recommendations if it is reasonable and practical to do so.

If an employee contracts Covid-19 from someone, for example a fellow employee in the workplace, they may be required to self-isolate.

According to current Government guidance, a contact is someone who has been close to another person who has tested positive for Covid-19. A person can be a contact of someone who has tested positive for Covid-19 if they:

1. live in the same household as someone who has tested positive for Covid-19 or has Covid-19 symptoms
2. have had face-to-face contact with someone who has tested positive for Covid-19, including being coughed or sneezed on or having a conversation face-to-face, within one metre
3. have been within one metre of someone who has tested positive for Covid-19, even if there was no face-to-face contact
4. have been within two metres of someone for longer than 15 minutes (either as a one-off 15-minute ‘contact’, or a totting up of smaller ‘contacts’ throughout the day)
5. potentially who have travelled in the same vehicle or aeroplane as someone who has tested positive for Covid-19.

Someone who has had an interaction with someone who has tested positive for Covid-19 through a Perspex or equivalent screen, will generally not be considered to be a contact provided that there have been no other interactions from the list above.

If one of your employees is believed to be a contact of someone who has tested positive for Covid-19 they are deemed to be at risk of contracting and spreading the virus. They will be contacted by the NHS Test and Trace service who will inform them as to whether they are legally required to self isolate. If someone is legally required to self isolate they must stay at home and should not leave the house. This includes not leaving the house to go to work, school or public areas and they should not use public transport.

On 16 August 2021, Government self-isolation guidance changed for those that are fully vaccinated (this means having received both doses of an approved Covid-19 vaccine, in the UK, with the second jab being at least 14 days ago). Close contacts of someone whom has tested positive for Covid-19 will no longer be legally required to self isolate if they meet the following criteria:

• they are fully vaccinated
• they are below the age of 18 years and six months
• they are taking part in an approved Covid-19 vaccine trial
• they are not able to be vaccinated for medical reasons.

Even if a person is not legally required to self-isolate, it is recommended that they take a Covid-19 PCR test if they are identified by NHS Test and Trace as a contact of someone who has contracted the virus. The Government have also issued advice that if a fully vaccinated person is identified as a close contact of someone who has tested positive for Covid-19, that they take a lateral flow test daily, for seven days.

According to the Centres for Disease Control and Prevention, Covid-19 symptoms may appear 2-14 days after infection and so, employers must consider their own health and safety policy and their own Covid-19 security measures as to whether they would be happy for the employee to return to work.

The required period for self-isolation for someone who is fully vaccinated but has tested positive for Covid-19 has also been shortened from 10 days to 7 days, provided the infected person returns a negative lateral flow test on days 6 and 7. These tests must be taken 24 hours apart. If the infected person still tests positive on these lateral flow tests, they must isolate for the full 10 days. If the person testing positive is not fully vaccinated, they must isolate for the full 10 days.

12. An employee has just returned from a holiday abroad, can they come back to work?

As in question 11, employers have a duty to make their employees’ working environment as safe as is practicably possible (please see question 2, above). Protection from the transmission of Covid-19 falls into this duty and so, with the Government’s concern over the creation of foreign variants and the introduction of the green, amber and red country traffic light system, what does this mean for employees returning to work once they have returned from foreign holidays?

Following on from questions 1, 2, 3 and 4, above, in relation to employees returning to the workplace, we thought it would be helpful to outline the Government’s self-isolation/quarantine guidelines for UK residents returning from overseas.

In a recent change, the Government are currently not categorising countries into red and green list countries. Instead, all arrivals in England must take a Covid-19 test in the two days before departure to England (this test can either be a PCR or antigen (lateral flow) test and fill out a passenger locator form. Isolation rules then depend on whether or not the arrival is fully vaccinated or not.

Fully Vaccinated

Once the fully vaccinated person has arrived in England, they must also pay for and take a ‘day two’ PCR test by the end of day 2 of their arrival in the UK (the date of arrival is day zero). The person must quarantine until this test comes back as negative. If the ‘day two’ test returns a positive result, the person must quarantine for either seven or 10 days, as in question 11.

Not Fully Vaccinated

Once the not fully vaccinated person has arrived in England, they must pay for a take a ‘day two’ and ‘day eight’ PCR test. The person must also quarantine for 10 days, regardless of their test results. If the test result is positive, the person must isolate for 10 days.

13. An employee needs to self-isolate due to Covid-19, are they entitled to Statutory Sick Pay and/or Company Sick Pay?

Employees are eligible for SSP (and are deemed incapacitated) if they are shielding and therefore unable to work or self-isolating for one of the following reasons:

• experiencing Covid-19 symptoms and self-isolating or have received a positive Covid-19 test result
• living with someone (or in an extended or linked household with someone) who is isolating due to having Covid-19 symptoms or have tested positive for Covid-19
• developed Covid-19 symptoms while already self-isolating due to another having symptoms
• been advised through the contact tracing system that they are a contact of someone who has tested positive for Covid-19
• been advised to isolate at home before a hospital procedure.

If they are isolating for one of these reasons, they could be entitled to SSP for every day they are off work and would not need to wait for the three days, as normal. If, for example, they have been told by the person that they have been in contact with them but have not been identified by NHS Test & Trace, I do not think that they would be entitled to SSP.

Whether or not company sick pay will be payable will depend on the terms of the contract clause or policy, e.g. if CSP is payable whenever SSP is, the employer will need to pay both.

If the CSP policy states that it is triggered by sickness only it is unlikely self-isolation, in the absence of symptoms or a positive test, would be caught and therefore would not be payable. However, employees should carefully consider their position in this scenario bearing in mind risks of infection and discrimination issues.

This would also depend on whether or not the employer has sent the employee home and whether or not the reason for sending them home falls within Government guidance. If the employer has sent the employee home because of a risk of infection (i.e. another employee has tested positive), the employee would have the right to receive full pay under the employer’s implied duty to pay wages (providing that there is no express provision contrary to this).

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The employment guidance for business portal

In addition to the Q&A’s, we are pleased to announce that we have an easily accessible Ashtons Legal Online HR Portal for businesses, which contains over 95 HR documents, templates and draft letters, covering over 14 topics such as contracts and offer letters, disciplinary issues, flexible working, performance management, family leave, sickness absence, recruitment, termination of employment and redundancy. The portal also contains a Furlough Agreement and a Job Support Scheme Open Agreement.

All of these materials are regularly updated to comply with new developments such as the COVID-19 crisis and the Good Work Plan, which came into effect on 6 April 2020.

If you would like unlimited one-year access to this portal, we are charging £325 plus VAT.

Please get in touch by emailing employment law solicitor, Claire Sleep at claire.sleep@ashtonslegal.co.uk.

Further information

For specific advice for your business, please get in touch with our specialist Employment Law team through this website or by calling 0330 404 0778.

Our partners at Ashtons HR Consulting are also on hand to assist you.

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This information is correct at 10am on 12 January 2022.