May 24, 2022

Volume XII, Number 144

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May 23, 2022

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England Moves to Plan B of its COVID-19 Response: What Does This Mean for Employers?

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.

Work From Home

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 government’s ‘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 government’s ‘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.

Face Masks

The new measures require that individuals wear face masks in most public indoor settings, such as shops, cinemas and theatres, but not in business settings such as offices. The UK Department for Business, Energy & Industrial Strategy has produced workplace 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.

COVID-19 Testing

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 measures—particularly without any statutory obligation to do so.

Government guidance asks 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.

New Self-Isolation Requirements

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 cases has been reduced from 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.

Temporary Change to Statutory Sick Pay Self-Certification Rules

The self-certification period for Statutory Sick Pay (SSP) has been extended from 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:

  • start during the period of 17 December 2021 to 26 January 2022; or
  • started before 17 December 2021, but which had not lasted seven days (and so medical evidence had not yet been required).

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

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XII, Number 1
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About this Author

Simon McMenemy, Labor Employment, Managing Partner, New York, OgleTree Deakins law firm
Managing Partner

Simon is an experienced employment law practitioner. He was called to the Bar in 1995, and subsequently qualified as a solicitor while working in the employment and incentives team of a major global law firm. He has advised on the employment aspects of many major international and multi-jurisdictional mergers and acquisitions. He also has a wide range of experience in advising companies on change management, particularly in relation to acquired rights, pensions and benefits. Simon advises on the increasingly complex issues arising on data privacy and data protection in the workplace and is...

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