On 21 February 2022, the Government published 'COVID-19 Response: Living with COVID-19', setting out its plan to remove the remaining coronavirus (COVID-19) domestic legal restrictions in England.
Here we set out the employment related changes:
Changes at a glance
From 24 February 2022
- End of the legal requirement to self-isolate following a positive test.
- End of the legal requirement for close contacts who are not fully vaccinated to self-isolate.
- End of the legal obligation for individuals to tell their employers when they are required to self-isolate.
- End of the employer's legal obligation to prevent workers required to self-isolate from working in any place except the place where they are self-isolating.
- End of routine contact tracing.
- End of self-isolation support payments, and national funding for practical support and the medicine delivery service will no longer be available. (People who were instructed to self-isolate before 24 February 2022 will still be able to claim support payments within the next 42 days).
From 15 March 2022
- Vaccination will no longer be required as a condition of deployment in Care Quality Commission (CQC) registered care homes.
From 24 March 2022
- The COVID-19 provisions within the Statutory Sick Pay and Employment and Support Allowance regulations will end.
- As a result, from 25 March 2022 Statutory Sick Pay will no longer be payable from day one if an employee is unable to work because they are sick or self-isolating due to COVID-19.
From 1 April 2022
- Routine contact tracing ends, including venue check-ins on the NHS COVID-19 app, although the NHS app will continue to be available to allow people to indicate their vaccination status for international travel.
- End of free symptomatic and asymptomatic testing for the general public. Free symptomatic testing to remain available to social care staff and a small number of (as yet to be confirmed) at-risk groups.
- Remove the health and safety requirement for every employer to explicitly consider COVID-19 in their risk assessments.
- Consolidate guidance to the public and businesses, in line with public health advice.
- Replace the existing set of "Working Safely" guidance with new public health guidance (no publication date yet specified).
Legislative changes at a glance
1. Self- isolation
The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 have been in place since 28 September 2020 and impose a legal duty on individuals who test positive, and certain close contacts, to self-isolate. They also introduced a legal duty on employers prohibiting them from allowing workers required to self-isolate to work in any place except the place where they are self-isolating and related criminal offences for breach of these regulations.
Originally due to expire on 24 March 2022, these Regulations are now being revoked on 24 February 2022 under The Health Protection (Coronavirus, Restrictions) (Self-Isolation etc.) (Revocation) (England) Regulations 2022.
2. Statutory Sick Pay
On 24 March 2022 The Statutory Sick Pay (General) Regulations 1982 and the Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020 will be amended to remove COVID-19 provisions.
From 25 March 2022 Statutory Sick Pay (SSP) will no longer be payable from day one if an employee is unable to work because they are sick or self-isolating due to COVID-19. Pre-pandemic SSP rules will instead apply, reverting to the first three days being qualifying days.
From 17 March 2022 the Statutory Sick Pay Rebate Scheme allowing employers with fewer than 250 employees (as at 30 November 2021) to recover up to two weeks' SSP for each employee who is off work suffering from COVID-19 or in self-isolation due to possible COVID-19 infection will close. Eligible employers will have until 24 March 2022 to submit any new claims for absence periods up to 17 March 2022, or to amend claims already submitted.
3. Employment and Support Allowance
On 24 March 2022 the COVID-19 Employment and Support Allowance provisions within The Employment and Support Allowance and Universal Credit (Coronavirus Disease) Regulations 2020 will automatically expire. From this date, people will no longer be eligible for Employment and Support Allowance because they are self-isolating due to COVID-19. Anyone infected with COVID-19 may, subject to satisfying the conditions of entitlement, still be eligible for Employment and Support Allowance on the basis that they have a health condition or disability that affects their ability to work under the general Employment and Support Allowance Regulations.
4. Vaccines as a Condition of Deployment Regulations
The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 making vaccination a condition of deployment were introduced in CQC registered care homes from 11 November 2021. These regulations require that individuals entering the premises are fully vaccinated, unless otherwise exempt. Regulations to extend vaccination as a condition of deployment to health and wider social care settings were set to come into force on 1 April 2022.
From 15 March 2022, the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 3) Regulations 2022 revoke the requirement for vaccination as a condition of deployment in these settings.
Impact for employers
In summary, the revocation of these mandatory measures puts the onus on employers to manage COVID-19 in the same way as they manage other common health risks in the workplace. For employees who can work from home, this is unlikely to be too problematic - employers will likely take the view that if staff have tested positive but are feeling well enough to work, they should work from home. If they are too ill to work, they should take sick leave.
However, managing the risk is likely to be more challenging for employers who cannot support working from home at all, meaning their ability to operate is affected by a spread of illness among the workforce. This is particularly so as with the withdrawal of free testing for most people, testing levels are likely to drop unless funded by employers, who will need to manage the risk created by more asymptomatic people coming to the workplace without knowing they have COVID-19. Managers will also need to be equipped to deal with individual concerns from particularly vulnerable people or staff concerned about vulnerable family members.
If you would like to discuss any questions prompted by the changes summarised here, please contact Jane Fielding or Connie Cliff.