England Moves to Plan B of its COVID-19 Response – The National Law Review

Saturday, January 1, 2022

Amid concerns surrounding the rapid rise in COVID-19 omicron cases, the UK government recently implemented Plan B measures in England. Here is a summary of the implications of these measures for employers.

As part of the Plan B measures, the UK government has advised that from 13 December 2021, workers who can work from home should do so. The governments Coronavirus: how to stay safe and help prevent the spread guidance states that [a]nyone who cannot work from home should continue to go into work for example, to access equipment necessary for their role or where their role must be completed in person. The guidance also advises employers to consider whether home working is appropriate for [employees with] mental or physical health difficulties, or those with a particularly challenging home working environment.

The new work from home direction is not a legal requirement; it is guidance only. However, employers have a legal duty to provide a safe working environment and this includes taking steps to mitigate the risk of COVID-19 for employees who cannot work from home. Employers may want to consult the UK governments Working safely during coronavirus page, which provides tailored guidance on how to reduce the spread of COVID-19 in the workplace for various different industries.

The new measures require that individuals wear face masks in most public indoor settings, such as shops, cinemas and theatres, butnotin business settings such as offices. The UK Department for Business, Energy & Industrial Strategy has producedworkplace guidance for offices and similar environments, stating that employers can encourage employees to wear a face mask, particularly in indoor areas where they may come into contact with people they do not normally meet. However, employers may want to be careful to refrain from discriminating against employees who are unable to wear face masks due to a disability.

There is no legal requirement for employers to implement COVID-19 testing in the workplace; however, some employers may want to do so to help minimise the risk of transmission. Nevertheless, there may be legal challenges associated with mandating workplace testing. In addition, employers may be unable to justify implementing workplace testing over and above other COVID-19 safety measuresparticularly without any statutory obligation to do so.

Government guidanceasks those continuing to report to their workplace to consider taking lateral flow tests regularly to manage [their] own risk and the risk to others. This guidance seems to imply that employers may encourage employees to get tested regularly.

The self-isolation rules for contacts of people with COVID-19 has changed. Beginning 14 December 2021, any individual who has been identified as a contact of someone with COVID-19 and who is fully vaccinated is strongly advised to take a lateral flow test every day for 7 days. In addition, the self-isolation period for positive COVID-19 caseshas been reducedfrom 10 to 7 days, but only for those who are fully vaccinated and receive negative lateral flow test results on day 6 and day 7 of their self-isolation periods. Employers may want to note that government advice regarding self-isolation is subject to constant review.

The self-certification period for Statutory Sick Pay (SSP)has been extendedfrom 7 days to 28 days. This modification is intended to allow the National Health Service (NHS) to focus on the COVID-19 vaccine booster rollout. Ordinarily, to be eligible for SSP, employees must provide their employers with proof of sickness (i.e., a fit note from their doctors) if absent for more than seven days.

Beginning 17 December 2021, the new legislation states that employees will not be required to provide their employers with proof of sickness for the first 28 days of absence. The temporary measure applies to absences that either:

For absences starting after 26 January 2022, the normal seven-day self-certification period will apply.

2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XII, Number 1

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England Moves to Plan B of its COVID-19 Response - The National Law Review