Last week, the UK Health Security Agency published guidance on ‘reducing the spread of respiratory infections, including Covid-19, in the workplace’. As trailed by the Prime Minister’s ‘living with Covid-19’ announcements in February (see our previous blog post for more detail), this new guidance replaces the ‘working safely during coronavirus’ guidance from 1 April. The new guidance continues the Government’s approach of treating Covid-19 in the same way as other respiratory infections, such as flu. This blog post summarises the key points to take away for employers.
Dealing with symptomatic staff
The new guidance highlights the importance of employers being aware of the symptoms of Covid-19, flu and other common respiratory infections so that they can take actions to reduce the risk of spreading the infection to others. It advises staff members who are unwell with symptoms to follow the guidance for people with symptoms of a respiratory infection such as Covid-19. Employers are prompted to consider how best to support and enable their workforce to follow the guidance as far as possible.
If individuals have symptoms of a respiratory infection and have not taken a Covid-19 test, or if they have a positive Covid-19 test result but no symptoms, the advice is to try to stay at home and avoid contact with other people, particularly higher risk individuals. For employers, this means that individuals should try to work from home if they can. If they are unable to work from home, individuals should discuss the options available to them with their employers. This could include the individual taking paid or unpaid leave. Alternatively, following the expiry of all temporary Covid-19 provisions within the statutory sick pay (SSP) framework, employers may wish to continue paying full pay in order to keep symptomatic individuals away from the workplace. This might open up the possibility of individuals exploiting the employer’s sickness absence policy, so employers will need to balance that risk with the broader risk to the workforce’s health if individuals who are unwell attend the workplace.
Where individuals have tested positive for Covid-19 or leave their home with symptoms, they should take additional precautions, such as wearing a face mask, avoiding crowded or poorly ventilated places and washing their hands frequently.
Individuals who live in the same household as someone who has tested positive are not advised to work from home. Instead, they should avoid contact with higher risk individuals, limit close contact with people outside of their household, wear a face mask and wash their hands frequently.
Taking actions to reduce the spread of respiratory infections
Employers are also advised to take actions to reduce the spread of respiratory infections, including supporting and enabling staff to get vaccinated in accordance with the guidance on vaccination for employers, improving ventilation in workplaces in accordance with the Health and Safety Executive’s (HSE) guidance on ventilation in the workplace, maintaining a clean workplace and promoting and applying these actions ‘more rigorously’ if there are high levels of people with respiratory symptoms in the workplace.
Dealing with higher risk staff
Where individuals are at a greater risk of serious illness for Covid-19, for example as a result of having a weakened immune system, they should follow the guidance for people whose immune system means that they are at higher risk. For work purposes, this guidance advises individuals to work from home if they can ‘if it feels right for [them]’. If they cannot work from home, they should speak to their employers about what arrangements can be made to reduce the risk of infection. This might require employers to consider reasonable adjustments for Equality Act purposes. Employers should continue to be mindful of their legal obligations when it comes to individuals with particular protected characteristics.
Conducting risk assessments
From 1 April, employers are no longer required to explicitly consider Covid-19 in their risk assessments (unless they specifically work with Covid-19, such as laboratories), but they can still choose to do so. Employers should continue to comply with all legal requirements for cleaning, ventilation and welfare facilities to control health and safety risks. As before, employers are required to consult with their employees or employee representatives on health and safety matters, taking into account the HSE guidance on workers’ health and safety.
Ultimately, employers still have a duty of care under both common law and legislation to take reasonable steps to prevent foreseeable harm occurring to their employees (see our earlier blog post for a summary of the legal obligations on employers). In addition, the significant relaxation in the guidance may cause concern for employees who are fearful of contracting Covid-19, who are vulnerable or who live with a vulnerable individual, perhaps resulting in a reluctance to return to the workplace. Employers will therefore need to determine their approach to workplace attendance and/or paying sick pay where individuals are symptomatic or testing positive for Covid-19. Further, employers will need to consider how to move forwards in the knowledge that testing is no longer freely available. In processing any data on employees’ health or vaccination status, employers should be mindful of the Information Commissioner’s Office’s (ICO) latest guidance on data protection and Covid-19, which asks employers to review their approach to data collection, processing and retention to ensure that it is still reasonable, fair and proportionate to the current circumstances, taking the latest Government guidance into account. Crucially, the ICO makes clear that, where employers can’t specify a use for health information and are checking it on a ‘just in case’ basis, or where they can achieve their goal without collecting the data, they are unlikely to be able to justify collecting it.