End to self-isolation rules – How should employers respond?

The Prime Minister recently announced that all coronavirus rules in England will end from 24 February 2022, including the requirement to self-isolate and access to free testing.

Such changes will have a direct impact on the way in which employers manage their workplace, and due consideration must be given as to how these changes can be accommodated safely and effectively.

What are the changes to self-isolation rules?

Until 1 April 2022, government guidance remains that those with coronavirus should try to stay at home and avoid contact with other people. However, it is no longer a criminal offence for an individual to attend a workplace whilst infected. Employers are therefore met with a difficult decision; to allow positive cases into the workplace or, to ask those with coronavirus to remain at home. Legally, the decision is entirely at the discretion of the employer.

Self-isolation guidance for employers

There are advantages if an employer chooses to end the requirement to self-isolate, including reduced absences, increased productivity and less disruption to the business overall. On the contrary, allowing infected individuals to attend workplaces poses certain risks, such as staffing shortages due to an outbreak, disproportionate risk to vulnerable persons or employees becoming fearful of attending work.

Employers who intend to require infected individuals to attend work should be mindful to mitigate the risks that this approach creates. It may be prudent to continue with social distancing measures, promote good hygiene and encourage vaccination against covid. An employer’s obligations with respect to the health and safety of their employees remains unequivocal, therefore every effort should be made to ensure that these standards are upheld. In turn, this will help to prevent any successful claims against the employer pursuant to S.100 (1)(d) and (e) of the Employment Rights Act 1996.

What to include in a coronavirus policy?

Alternatively, employers may choose to continue with the working from home guidance. In these circumstances, employers should curate a detailed coronavirus policy and issue this to all staff. Employers are likely to come up against certain issues when creating such a policy, including but not limited to:

• How to manage employees who cannot work from home;

• The cost of testing employees to confirm a positive case;

• Managing employees who want to attend work despite having covid;

• Eligibility for company and/or statutory sick pay;

• Managing general attitudes towards covid; and

• Possible issues arising in relation to discrimination laws and GDPR.

Any policy must be careful not to penalise an individual who is willing and able to attend work but cannot do so because of the employer’s decision not to allow covid-positive cases into the workplace. Employers may find it helpful to first discuss their proposals with employees, to assess their mood and gauge the likely response to any proposed policy.

Ultimately, the circumstances require an employer to balance the risk profile of the work environment and employees, against the level of risk posed by infected individuals attending the workplace. Employers should therefore stay alive to any market changes and remain adaptable in their approach.

This will differ greatly between industries and professions and is also likely to change over time. If you have any queries or for further guidance, please contact Oliver Tasker.