Working With COVID: A Guide for Employers Part 1

Willing and able to work

On 21st 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 two-part 'Working with COVID' series, we will guide employers in England through issues relating to COVID-19 when there are no longer legal restrictions in place. This article focuses on what an employer should do when an employee tests positive for COVID-19. 

Self-Isolation

On 24th February 2022, the legal requirement for individuals to self-isolate after testing positive for COVID-19 ended. Daily testing for vaccinated individuals who may have been in contact with someone who tested positive and the requirement for unvaccinated individuals to isolate upon contact also ended.

These legal requirements have been replaced by non-binding guidance, which continues to advise those testing positive to stay at home until 1st April 2022 and, thereafter, encourages 'personal responsibility', similar to how the common cold or flu is treated.

Sick Pay

Previously, an employee who tested positive and was required to isolate would, as a minimum, receive Statutory Sick Pay from their first day of isolation. However, these special COVID-19 sick pay provisions ended on 24th March 2022. If an employee contracts COVID-19 and is symptomatic to the extent they cannot work, the usual rules regarding statutory sick pay would apply (payable from day four onwards) unless the employee has enhanced sick pay in their contract of employment.

However, as vaccination rates are high and the symptoms of the Omicron variant are less severe, many people who test positive for COVID-19 may have mild symptoms or no symptoms at all. This leaves employers with the issue of how to treat employees who test positive for COVID-19 and can continue working as usual.

Where an employee can work from home, an employer may wish to include a requirement to do so following a positive test in any hybrid working policy, and the employee will continue to be paid full pay.

The issue is less straightforward if an employee cannot work from home, such as those in retail, manufacturing or hospitality. Employers in such industries will need to decide whether to allow employees into the workplace or require them to stay away.

If, despite having COVID-19, an employee is willing and able to work, but the employer wishes for them to stay away from the workplace, it is likely that the employer will be required to be paid their full pay, even if they are required to stay at home. Employees are also no longer legally required to inform their employers if they test positive. It is also unlikely that an employer could discipline an employee for bringing COVID-19 into the workplace to work.

Employers will also have to consider their policies on how long an employee is required to stay at home, balancing the wish to ensure the employee is no longer able to spread the virus with the financial implications of paying an employee full pay to not work. This may be for the full ten days previously in place, following negative tests on days five and six or alternatively following two negative tests at any time.

However, PCR and lateral flow tests are generally no longer available at no cost from 1st April 2022, and this issue will be discussed in the second part of our' Working with COVID' Series.

Here to help

If you have any more questions or would like more information regarding handling COVID in the workplace, you can contact our Employment Team below