Employers – what is reasonable under the new covid rules?

Employers – what is reasonable under the new covid rules?

Dec 14, 2021

New measures have been announced by the Government over the last few weeks to combat the threat posed by the new Omicron variant of the Covid-19 virus across England. This includes the raising of the UK’s Coronavirus alert level from three to four, meaning that transmission rates are now “high or rising exponentially”.

Following the announcement of the new measures, lateral flow testing kits became unavailable on the Government website. The website was accepting new orders earlier today, however, appears to have now ran out again. Employers are advised to keep this under review and encourage staff to check the website regularly where lateral flow tests are required.

As the new measures have been announced sporadically, we have set out a summary below. This includes a few brief considerations which employers may now also want to think about going forward.

New Measures

  • Face coverings are once again compulsory in most indoor public venues. This includes shops, hairdressers, theatres and cinemas. This, however, does not apply to gyms, pubs or restaurants;
  • Guidance for people to work from home (if they can) has been reintroduced as of Monday 13 December;
  • From Tuesday 14 December, individuals who are in contact with confirmed positive Covid cases will be required to take daily lateral flow testing for seven days following the confirmed contact;
  • The Prime Minister has stated that all adults are to be offered a ‘booster’ vaccine by the end of the year to combat the new Omicron variant; and
  • MPs are voting on further measures to be introduced from Wednesday 15 December which would require individuals to provide one of the following for certain venues and events:
      • proof of being fully vaccinated;
      • proof of a negative Covid test taken within the last 48 hours; or
      • proof of an exemption.

This is all in addition to the existing measures in place requiring anyone with Covid symptoms, those who test positive, and unvaccinated individuals coming into contact with a confirmed positive Covid case, to self-isolate.

Rules in relation to travel in and out of the UK also remain in force, meaning that anybody travelling to the UK is required to take a PCR or lateral flow test in the two days prior to their departure. This should then be followed by a period of self-isolation pending a negative PCR test taken in the two days following the day of arrival in the UK.

Considerations for Employers

Employers have continued to adapt throughout the Coronavirus pandemic, and are now being asked to do so again by the Government. Although not a legal requirement, employers should now consider once again whether it is reasonable for their employees to work from home. In line with the applicable guidance, this should include consideration of individual circumstances, including mental and physical health difficulties.

Where a role cannot be performed from home, the guidance remains that the individual should continue to attend the workplace. Where people are attending the workplace, employers should consider having policies and procedures in place to reduce the risk to their workers, for example, requiring regular lateral flow tests and temperature checks.

Employers may be aware of the recent supply issues with lateral flow test kits from the Government website, and guidance may therefore need to be issued to staff as to where they can source tests (for example, a pharmacy or community collection point).

Consideration may also need to be given in relation to workers who are intending to travel abroad during the Christmas period. Any pre-booked holiday may need to now be extended or otherwise altered to cater for the mandatory self-isolation period after arrival in the UK as outlined above.

The Government has also not ruled out putting further restrictions in place, and so the situation will likely continue to change. This could result in further measures being put in place, depending on the rate of transmission. In any event, employers should continue to monitor the situation closely and discuss any concerns that may arise with their staff.

Across various sectors, we are finding that the attitude of employees towards the new measures differs from restrictions previously in place and individuals may now be less willing to comply. This, in turn, can lead to difficult situations for employers in managing these staff, and where such a situation arises we recommend that the employer takes legal advice as to how best to proceed.

For further advice on anything raised in this update, or for practical tips on the management of the workplace in light of the new Covid measures, please contact our Employment Group on 0118 977 4045 or employment@herrington-carmichael.com.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.

Jack Rose

Jack Rose

Trainee Solicitor

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