New workplace guidance on living with COVID

On Friday 1 April the Government issued new guidance for employers in England on how to reduce the spread of respiratory infections, including COVID-19, in the workplace. The new guidance replaces the previous guidance for higher education providers (last updated on 24 February) which has now been withdrawn.

The new guidance, which reflects the Government’s “living with COVID” strategy, no longer focuses exclusively on COVID infections, but addresses a wider variety of respiratory diseases. The key points for educational institutions are:

1. As employers, you are no longer legally required to consider COVID-19 explicitly in your statutory risk assessments or put in place specific control measures to reduce the spread of COVID-19 at work. However, you must continue to comply with all relevant health and safety legislation and there are specific obligations to protect workers who come into contact with COVID-19 as part of your work activities. The new guidance also encourages employers to take actions to reduce the spread of respiratory illness within the workplace, such as by encouraging vaccination, ensuring good ventilation and by maintaining a clean working environment. You should continue to have regard to available guidance on protecting those who may be at higher risk from COVID-19, including advice from public health bodies and other government departments.
2. Workers who have symptoms of a respiratory infection or a positive COVID-19 test are advised to follow the new guidance for People with symptoms of a respiratory infection including COVID-19 - GOV.UK (www.gov.uk). There is no absolute requirement in this guidance for workers to self-isolate if they have symptoms or a positive COVID test. However, the Government states that people with symptoms should “try” to work from home and avoid contact with other people, particularly those who are vulnerable, until they no longer feel unwell. Asymptomatic workers who have a positive COVID-19 test should follow the same advice as those with symptoms for a period of 5 days to protect others.
3. Rules around free testing have changed. In England, free testing is now only available for certain categories of individuals, including NHS patient-facing staff. Employers who have relied heavily on staff to take free lateral flow tests before attending work will have to decide whether they should be covering the cost from 1 April, unless the relevant staff continue to be eligible for free tests.

As there are no longer specific COVID-19 provisions in the Statutory Sick Pay Regulations, if an asymptomatic worker with a positive COVID test is unable to work from home but the employer does not want them to attend the workplace, it is likely that the employer will need to suspend the worker on full pay for the period they are required to remain at home or potentially amend their occupational sick pay scheme to cater for such a situation. Employees who are unwell and experiencing symptoms of a respiratory infection will normally be eligible for occupational sick pay in the usual way.

As in the period following the lifting of legal restrictions on 24 February until the end of March, HE institutions will need to make potentially difficult decisions (in conjunction with trade union and health and safety representatives) about whether to follow government guidance (as recently modified) or adopt stricter measures. This will involve balancing their duty to maintain a safe working environment with the wishes of their workforce and the need to provide the best educational experience for their students.

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Nick Abbott

Partner

T: +44 (0) 121 456 8266

E: nick.abbott@mills-reeve.com