Real Employment Law Advice

Requirement to self-isolate has been removed

As you will be aware the legal requirement to self-isolate following a positive covid test has been removed from the 24th February 2021 however the guidance and messaging from the government is that you should still stay at home if you have a positive result! Where does this leave employers????

Consider your policy

It is important that employers consider what the policy is going to be in the event of a positive test from an employee and there are a few options/scenarios to consider.

1. Employee has a positive test, has symptoms and is unwell.

In this scenario your normal sickness process would apply which means if they are not fit to work then they are off sick and generally most people self-certify for the first few days and then they would be entitled to statutory sick pay if they meet the relevant criteria and are absent for 4 days or more. If you pay enhanced company sick pay, then the normal rules would apply.

2. Employee has a positive test, is fit to work and can work from home.

This is fairly straightforward as you can ask them to work from home until they have a negative test and are clear to return to work. They would work during this time, and you would pay as normal.

3. Employee has a positive test, is fit to work but cannot work from home.

It is this scenario that you need to give careful consideration to!

If you send the employee home or tell them they cannot work until they have a negative test, you are bound to pay them, even if they cannot work from home.

If you tell them to attend at work, whilst they may be happy to work, colleagues may be unhappy that they have to work alongside someone who has tested positive for covid.

If the employee works in a customer facing environment and customers become aware of your policy, they may not feel comfortable coming to you with the risk of infection. This is particularly the case for those who are in the more at risk or vulnerable categories.

Mitigation steps

If you decide that your policy is that employees have to attend at work, regardless of a positive test, then you may want to consider what mitigation measures you put in place. These could include:

  • Keeping them isolated from others as far as possible by working alone or in another area.
  • Instructing them to wear a mask when at work.
  • Adjusting their hours of work so that they are working when fewer people are around.
  • Changing their job role so that they are not customer facing.

Policy on Testing

Along with the changes to the self-isolation rules there are going to be changes to the availability of free lateral flow tests, and so if you have a policy that staff must test regularly are you going to purchase tests for staff to use and continue with this policy?

Of course, if you cease testing for staff then the likelihood of someone knowing they have covid with no symptoms is going to be reduced and therefore reduce potential issues that may arise with colleagues. It does not however mitigate the potential spread of covid among your workforce which could have a much wider knock-on effect, if for example you have to cease trading or halt production because you do not have enough staff who are well enough to work.

Covid Statutory Sick Pay (SSP)

After the 17th March 2022 you will no longer be able to claim back statutory sick pay which you have paid out to employees in the event of a positive covid test.

This means that SSP will no longer be payable from day one, and the three waiting days will apply. It also means that you have bare the full cost of SSP to employees who are absent and unwell due to covid.

Communication of your policy

Whatever you decide to do it is important that you review and update your covid risk assessment and communicate your decision to employees in a clear manner as soon as possible.

I also recommend that you proactively approach and discuss concerns with those staff who have expressed concern about covid in the past and/or who are vulnerable or have someone at home who is vulnerable.

If you need any help in making a decision, discussing your options or communicating your policy to employees then my team and I will be happy to assist with this.

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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.

The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.


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