Written by the Employment Law team at Mersons Solicitors
Ensuring a safe workplace
On 21 February 2022, the Prime Minister gave a statement to the House of Commons setting out the government’s strategy for living with COVID-19 in England.
In our ‘Working with COVID‘ series, we will guide employers in England through issues relating to COVID-19 now that there are no longer legal restrictions in place.
This article focuses on choices employers can make to ensure a safe workplace for their employees.
From April 2022, the vast majority of employers will no longer have a legal obligation to cover COVID-19 in their risk assessments, but government guidance states they may choose to do so. Employers will still be responsible for the health and safety of their employees at work, and this should include measures relating to COVID, such as social distancing, ventilation and handwashing.
During the pandemic, many employers introduced testing policies to ensure a safe environment when employees returned to the workplace. Employers may wish to keep their testing policies in place in the short term to reduce the likelihood of employees catching and spreading COVID-19 and being absent from work.
However, the latest government guidance does not include testing as a method of ensuring a safe workplace. Free testing for the general public has also ended, meaning employees can no longer order lateral flow tests or book PCR tests without incurring costs. It is unlikely that employers will be able to insist that employees cover the costs of COVID-19 testing themselves in order to come to work, so these costs would need to be covered by the employer.
If an employee refuses to continue testing, despite the employer paying for the test, this may be a disciplinary offence. It is unlikely that a long-term testing policy would be a ‘reasonable management instruction’ enabling an employer to dismiss an employee who refuses to test, particularly in light of current guidance and as the COVID-19 virus gradually becomes less dangerous from a medical perspective.
There is also no longer any legal requirement to wear face masks in public places. Employers will need to carefully consider whether it is reasonable to continue to require employees to wear masks whilst at work. This decision will vary between different business environments and may be more reasonable in public-facing roles, such as retail businesses.
Whilst not specifically referring to the workplace, government guidance does recommend masks if COVID-19 rates are at a high level and people will be in close contact with others in enclosed spaces.
Employers should also support employees who may choose to wear a mask in the workplace.
Clinically Extremely Vulnerable Employees
Many employers may decide that now is the time to relax their COVID-19 policies relating to testing and masks. However, guidance continues to recognise that certain employees may be vulnerable to COVID-19 where they are immunosuppressed. Vulnerable employees are advised to continue to work from home if they can. Where this is not possible, employers and employees should discuss what arrangements can be made to reduce the risk of the employee catching COVID-19, including taking advice from an occupational health physician. It may be the case that an employee is considered disabled under the Equality Act 2010 and would, therefore, be entitled to reasonable adjustments to facilitate their return to work, such as a change in work location or hours.
Employers should also monitor the growing medical knowledge around the condition known as “Long Covid“. This condition carries a range of varying symptoms – including fatigue, pains, headaches, anxiety and breathing difficulties – and impacts people who have previously contracted COVID-19. Those who suffer from long-term health problems as a result of COVID-19 could qualify as “disabled” under law and be entitled to reasonable adjustments to their role and other protections under the Equality Act 2010. Employers should be aware of the existence of this condition when they enforce their absence management and capability procedures. If necessary, employers should seek occupational health advice on the condition.
Taking Legal Advice
The situation with COVID-19 is ever-changing. Employers are advised to take legal advice on how COVID-19 may continue to affect their specific business when working with covid.
If you have any more questions or would like more information regarding working with Covid, you can contact the Employment Solicitors at Myerson.