On 9 February 2022, Boris Johnson announced that he expects to end all Covid restrictions in England by the end of February. The current regulations, including the legal requirement for Covid cases to self-isolate for at least five full days and for SSP to be paid from day one for Covid-related absences, are in place until 24 March 2022.
However, the Prime Minister said that he hopes to present a strategy on living with Covid in line with the falling numbers of hospitalisations and deaths. This strategy will be set out on return from the parliamentary recess on 21 February 2022 and is set to include the removal of all remaining restrictions on or around 24 February 2022, one month earlier than planned.
A government spokesperson said the law will be replaced with guidance — for example, people will be urged not to go to work if they have Covid, but they will not be breaking a law if they do. The spokesperson highlighted that employees are already not expected to attend the workplace if they have an infectious, transmissible disease (for example the flu virus) which could pose a threat to others, so Covid should be no different in this regard.
During the pandemic, the Government also amended the Working Time Regulations to allow employees to carry over unused annual leave into the next two holiday years, where it was not reasonably practicable for them to take it within the current one. It is likely this will also come to an end, although it is unclear whether there will be a transitional period to align with normal leave years.
What’s the situation in Scotland and Wales?
The changes announced by Boris Johnson at the moment only apply to England. Scotland and Wales will set out their own position.
The Welsh Government said they may look to adopt a similar approach and end the legal requirement to self-isolate from the end of March, one month later than England.
The Scottish Government are expected to extend their remaining Covid restrictions until 24 September 2022 — this includes the use of face masks and Covid Passes. Ministers continue to assess the rules every three weeks, with the next review on 22 February 2022. It seems unlikely Scotland will follow England and remove self-isolation rules at the moment.
For any period where the rules in the individual countries are different, employers who would normally send staff into Wales or Scotland will have to be aware of the rules there. Someone with Covid who is not isolating in England and goes to Wales for work will be breaking the Welsh law, so this should not be allowed.
What does this mean for employers?
Employers may have to manage employees coming into the workplace whilst they are Covid-positive. They may also have to manage staff members (and service users) who are clinically extremely vulnerable, so are concerned about the safety of the workplace — this will likely be most prudent for care sector organisations.
Employers will have to look closely at their health and safety policies and procedures to ensure the workplace continues to be safe from Covid; this might mean (re)introducing more or new safety measures like face masks, one-way systems and physical distancing.
Some employers might want to introduce a contractual isolation requirement, so they can tell employees not to come into the workplace if they have Covid. They will have to assess how this will work in practice, including how long the isolation period will be, what pay employees will get and how they will evidence having Covid. Employers will need a sound business case to explain very clearly why a policy of this nature is needed.
For now, it’s best for employers to await the Government’s announcement and any subsequent guidance before taking any action. However, they should be prepared to implement and communicate changes quickly.
What will happen with Covid-related sick pay?
The regulations included the provision for employees to be given statutory sick pay (SSP) from day one for Covid-related absences. Usually, employees must be off sick for more than three qualifying days (working days) and will only be eligible for SSP from the fourth qualifying day of sickness. It is likely the payment rules will return to normal in this regard, including for any Covid absences beyond the expiry of the regulations.
However, if the Covid isolation and payment measures remain as they are in Scotland and Wales, employers who have employees working in those areas will still have to abide by those rules. This means an employer could pay staff differently depending on where they work and the reason for their absence.
Similarly, it is currently unclear what the future of the Coronavirus Statutory Sick Pay Rebate Scheme (SSPRS) will be. This was introduced to provide financial support to organisations with fewer than 250 employees during times when their employees if absent for Covid-related reasons (eg testing positive or having to isolate as a close contact). The Scheme covered the cost of SSP per employee for up to two weeks, for any Covid absences starting on or after 21 December 2021. The UK Government may decide to close the scheme completely, meaning employers in Scotland and Wales must cover the cost of sick pay for their employees who are legally required to isolate. It is unlikely the devolved parliaments will have the financial resources or practical capabilities to introduce a similar rebate scheme themselves.
What should employers do now?
No decision has been made yet and the situation could change significantly in the coming weeks, so employers don’t need to take any immediate action. For now, it’s best for employers to await the Government’s announcement and any subsequent guidance before taking any action.
However, employers should be prepared to implement and communicate changes quickly, so should remain in regular contact with their workforce, to ensure employees are fully aware of what is and what could happen.