End of Covid Restrictions – What now for employers?Natalie
How do we manage the end of Covid restrictions in the workplace?
The end of Covid restrictions is here and the legal duty to self-isolate if a person tests positive for Covid has been scrapped from Thursday 24th February 2022.
However, us HR professionals are bracing ourselves for a sh*tshow! I have a feeling that this is going to be a legal minefield.
So, let’s look at the ending of restrictions and the possible backlash for employers in more detail.
Can I force staff to come back to the office once all restrictions end?
Employment lawyers are warning employers that they face financial penalties and legal issues if they try to force Covid-positive workers to come into the office once all remaining restrictions end. There’s a high chance that employers could be taken to court should employees start blaming them for contracting Covid in the office. And any employer who takes disciplinary action or dismisses an employee refusing to come into work, despite not being ill nor clinically vulnerable, could face sanctions in what’s likely to become a legal minefield in the coming months. The end of Covid restrictions is likely to create fear for some people just as much as others will be celebrating.
How can we minimise the risk of legal action?
Bearing in mind that I am not a health and safety specialist, I would advise that you get professional advice on this, however, from an HR point of view, I predict that more rigorous risk assessments could be necessary for the workplace to ensure clinically vulnerable staff are protected and can’t sue their employer for negligence or malpractice.
Why? Because despite the end of Covid restrictions, employers are responsible for the health and safety of all their employees. If an employer forces an employee into work and they suffer ill health as a result, the employee has the right to take action against their employer. The situation is right now, but many employment lawyers are suggesting that employers should stop staff from coming into the office if they show viral symptoms.
This is not something new, companies already have a long standing duty of care to protect the health of their staff irrespective of Covid, it’s just that the burden of safety has grown in the past two years following outbreaks of new virus variants.
Employees are protected by law if they refuse to return to a place of work that they ‘reasonably believe presents a serious and imminent danger to them’. If an employee is penalised for not returning for these reasons, then their employer could be on the end of an unfair dismissal and/or a detriment claim. As a result, it would be unwise for employers to take a ‘one size fits all’ approach to reluctant returners.
What should small businesses do now Covid restrictions have ended?
This is undoubtedly a big moment for employers as it means employers can no longer rely on Government regulation to provide the framework for a system of protection for their workers. Employers are going to need to set the rules for themselves. It may be sensible for these to cover new more potent strains of COVID-19 that may come along or even other infections besides COVID-19. It may also be wise to encourage staff to work from home or take sick leave if they are experiencing viral symptoms (including Covid, flu and Norovirus symptoms).
If you do not have appropriate policies already in place, you may want to consider introducing ‘infection guidelines’ to set standards for the entire company so everyone is clear.
The next step is for employers to carry out more in-depth risk assessments and then talk to their employees, clearly outlining expectations, precautions and a plan for their return (or continued hybrid/home working).
It’s imperative to evaluate what you need to do as a business and make your own mind up about what is safe based on feedback from your staff. Talk to your team and find out their views on what they are comfortable with alongside the business needs and make decisions based on that – getting buy in will make any changes easier.
All in all, I would recommend proceeding with caution and listening to your people. Be mindful of the laws and don’t jump feet first in to forcing staff into a workplace where an outbreak is raging.
Dealing with infection control from an HR point of view
There are a number of things that businesses have been doing for years to control infections. Here are some to consider:
‘Don’t be a d*ck, stay home if you’re sick’
- if staff are well enough to work from home, then great – encourage this
- if staff aren’t well enough to work then they should be on sick leave
- however, if staff are well enough to work but don’t want to spread illness then we need to consider how we pay them? Many of my clients have already adopted the addition of company sick pay to their working practices in light of the pandemic.
- consider improving ventilation (without freezing people!)
- clean desks and equipment daily with antibacterial/antiviral cleaner (especially when hot desking)
- continue using hand sanitiser / wash hands regularly
- dispose of tissues effectively
- possible use of masks in settings when working with vulnerable people
Protection of vulnerable people
- consider reasonable adaptations for those who are clinically vulnerable (and are possibly also classed as disabled under employment law) e.g. working from home
- continued use of PPE where relevant
- watch out for discrimination claims and constructive dismissal claims from this category of people
All in all, the pandemic has taught us that our health is something to protect and not play roulette with. Why we thought ‘back in the day’ that it was ok and even expected that people came into work when sick is beyond me! Our bodies need to rest when we’re sick and, in my opinion, employers need to respect this fact and we should be supporting our staff to do this.
I truly believe that the sick leave/pay system is broken and not fit for purpose any more. Most employees will not exploit company sick pay provisions, and with the right processes in place it’s easy to catch those who do.
Is it time that we reviewed how we treat sickness absence in general?
For further help and support for your business, give me a call on 020 8798 3470 or message me here.