How should employers manage the ‘living with Covid’ guidance?

Emma Williams outlines practical strategies for managing workforces now all restrictions have been lifted, but the virus is still very much around

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The government recently announced that we are entering a new phase of the pandemic; one where we now learn to live with Covid-19. All domestic Covid-19 regulations restricting public freedoms have come to an end. We are now being encouraged to act reasonably and use our discretion. What do these changes mean for employers? 

Health and safety must remain a priority

Covid restrictions have been replaced by public health advice from the Health and Safety Executive (HSE) on continuing to work safely during Covid. The HSE no longer requires every business to consider Covid in their risk assessment or to have specific measures in place. There is a requirement to protect those who will come into contact with the virus due to their work activity.

Returning to the office

Employers should now look at what working patterns have been adopted and whether they need to change over the coming months. This might mean a phased return to the office, permanent hybrid working or an immediate full-time return to the office. Business needs, market standards and company culture will all influence that approach. 

If an employee is denied the hybrid working arrangement they are looking for through informal channels then, provided they have more than six months’ service, they can submit a more formal flexible working request. Requests should be considered in accordance with the ACAS guidance and can be accepted or rejected, based on eligibility grounds or for one of eight prescribed statutory reasons. 

Implement Covid-19 policies 

Staff are no longer legally obliged to self-isolate if they have symptoms and access to free tests has come to an end. Without the right policies, this could make for a perfect storm when managing sickness absence and office attendance. Here are some factors that employers should consider when formulating those policies:

  1. Symptoms 

We know that Covid-19 symptoms are broadly the same as the common cold, or a winter ‘bug’, or a late night with some raucous shouting, so employers need to be clear that they expect employees to have the wisdom to know the difference. That’s a balance for employers to determine, whether they want slightly sick employees coming into the office at all to spread germs, versus giving a green light to those who are more likely to be persistent absentees needing management in accordance with usual procedures. 

  1. Testing 

On 1 April 2022, access to free Covid-19 tests came to an end. Employers need to decide whether employees will be either expected to self-fund tests or be supplied with them by the business, if requested. 

  1. Failure to comply with a reasonable request

There then remains those employees who either refuse to take a test, or refuse to provide evidence that they have tested positive. If they refuse to take a test but are absent, without reasonable excuse, because they’re symptomatic, it’s potentially a disciplinary matter with the consequences that could follow.

If they neglect to send evidence of a positive test then it’s the same as failing to provide a Fit for Work certificate. While employees can self-certify a week’s absence to maintain their qualification for statutory sick pay, consider withholding company sick pay pending the provision of a genuine picture of a positive test result. 

To implement Covid-19 policies, employers might consult with employees or simply tell them about changes, and the employer might introduce consequences for failing to comply. By thinking about those consequences from the outset, employers will be able to implement effective strategies that both reflect their culture and achieve their objectives. 

Emma Williams is an employment associate at Katten Muchin Rosenman UK