As I am sure you are all aware, 19 July 2021, commonly referred to as "Freedom Day", brought about new changes to the ever-evolving situation with the Covid-19 pandemic.
I have been receiving numerous queries on what Freedom Day means in practice for employment law. Do not worry if you feel overwhelmed by it all; at this stage, even I am struggling to keep up with all the different rules and guidelines out there for business and their workforces! To try and help matters, I have set out the current position on a few points below to try and clarify the situation.
Do employees still need to wear a facemask to work?
In the latest update, the Government's message shifted from enforcing measures of prevention to asking individuals to take personal responsibility, not only for their own health and safety but also for the health and safety of those around them, to try and stop the spread of Covid-19. As a result, as of 19 July 2021, face coverings are no longer required by law. However, it is important to bear in mind that it is still recommended that face coverings are worn in crowded areas, e.g. public transport, to provide that extra bit of protection.
Businesses should develop their own policy on face coverings, depending on the work conducted and the level of close contact between individuals in attendance at the workplace. This policy should be communicated to all employees as soon as possible so that they are aware of company policy and able to comply accordingly.
It is important that employers remember that they cannot force employees to continue to wear a face-covering, as it is no longer a legal requirement to do so. However, employers are able to communicate with their employees to explain that that have undertaken a risk assessment and, in an attempt to maintain a covid secure workplace, formed the decision that staff should continue to wear face-coverings where possible as a means to protect everyone's health and safety.
Businesses should develop their own policy on face coverings, depending on the work conducted and the level of close contact between individuals in attendance at the workplace. It is vital that the policy is considered reasonable, which is why the policy should be developed based on the specific needs of the business and taking into account all circumstances.
For instance, in an office building, it is likely to be deemed reasonable for you to ask employees to continue to wear a face-covering when walking around the building, given this may result in close contact with colleagues. Alternatively, if your business is in hospitality, you may wish to ask employees to wear a face-covering when serving customers. it is interesting to see that many restaurants, including big chains such as Wetherspoons and Mitchells and Butlers, have confirmed that face coverings will be voluntary for staff and customers as of Freedom Day.
This policy should be communicated to all employees as soon as possible so that they are aware of company policy and able to comply accordingly.
What are the rules on self-isolation?
As you have probably seen, the number of individuals self-isolating is rapidly on the rise. In the first seven days in July 2021, 520,194 in England and a further 9,932 in Wales were contacted by the NHS Covid-19 app to self-isolate. Recent self-isolations have even included the Prime Minister and Sajid Javid, Secretary of State for Health and Social Care.
Again, whilst there is no legal requirement for your employees to self-isolate following notification from the app, it is advised that they do so to limit the virus's potential spread.
If your employee chooses not to isolate, despite Government guidance, they should, as a minimum, take precautionary steps within the advised ten-day period of isolation. This could include measures such as taking a lateral flow test daily, checking their temperature and/or limiting their time in contact with others, for example.
Please bear in mind that there is still currently a legal requirement for all employees to isolate in many circumstances, including:
- They have COVID symptoms and are awaiting the result of their PCR test;
- They have tested positive;
- They live with someone who has symptoms or has tested positive;
- Someone in their support childcare or support bubble has symptoms or has tested positive;
- NHS Test and Trace have contacted them; and
- They have travelled abroad, depending on the area of travel.
Please note that the NHS Covid-19 app is separate from NHS Test and Trace, albeit they are both used by the NHS to inform people when they have been in close contact with someone who has coronavirus, which can be confusing. Test and Trace will usually contact you via email, text or phone call, whereas the app will simply alert you via the app itself.
From 16 August 2021, there will be yet more changes. These intended changes will mean self-isolation is no longer a legal requirement for those under 18 years of age or for those who have been “double jabbed”. However, the Prime Minister has warned of exercising caution, despite the easing of restrictions, due to the growing number of cases which could potentially result in amendments to these changes (I’ll make sure to keep you updated!).
In terms of practical action, if one of your employees is required to self-isolate, they should inform you and then they should remain at home and only leave home for a minimal set of reasons, as set out under legislation. You should maintain communication between you and any employees who are self-isolating, as with other forms of sickness absence, to check in with the employee and see how their recovery is coming along. You should ensure that both you and employees are familiar with your sickness absence reporting procedure, albeit there are slight differences in respect of statutory sick pay for sickness due to self-isolation in some situations.
Your employee should not attend work until their period of self-isolation has finished – this being ten days, or potentially longer if they develop symptoms part way through their period of self-isolation.
If employees are required to self-isolate, they will be entitled to statutory sick pay for the period of isolation, starting on day one (i.e. the usual waiting period for statutory sick pay will not apply). However, please note that should self-isolation as a result of travelling abroad will not automatically entitle employees to statutory sick pay given their self-isolation was self-inflicted.
Are you entitled to test your employees?
Employers can put in place preventive measures to help their workplace be as covid-secure as possible. Employers have a duty to protect the health and safety of all their staff, which will include putting in place measures to allow for testing of employees; the aim behind this being to reduce the spread of the virus and place employees and customers at ease when attending work. Lateral flow testing is a fast and straightforward way to test employees. It is recommended in the private sector for employees to offer their workforce access to a minimum of 2 lateral flow tests every week. Lateral flow tests are easily accessible from the government website or can be provided by work to employees if necessary.
Can we require our employees to have a vaccine?
In short, at present, most employers cannot force their employees to have the vaccine. However, employers have an obligation under the Health and Safety at Work Act 1974 to take reasonable steps to reduce workplace risks and, therefore, employers can encourage the vaccination among employees on the basis of attempting to protect all those in at the workplace. Such encouragement should be done across the whole workforce – employees should not be singled out in this respect.
Public Health England has issued guidance for employers to help them explain to their workforce the benefits of the vaccine and why the business is supportive of this.
The Prime Minister's announcement on 19 July 2021 was strongly focused on encouraging covid vaccinations. It was noted that whilst 96% of the over 50s had received jabs and 83% of 30-50-year-olds, only 65% of 18-30 years olds had been completely vaccinated. It was also explained that some freedoms in the future might depend on being fully vaccinated, one example being attendance at nightclubs from the end of September of this year (i.e. when all over 18's have been offered the opportunity to be “double jabbed”). Employers can communicate this Government message to their employees as a way to encourage the take up of the vaccinations, although, this should be limited to encouragement only; no employee should feel pressured to have the vaccine. Employers should also watch out for future announcements on other freedoms that may require vaccinations, as this may persuade some employees who previously refused the jab to reconsider.
Saying this, there are a few employers in a unique position in respect of the vaccine. New legislation is intended to be brought into effect from October 2021 to make the Covid-19 vaccination mandatory for care home workers, unless the worker has a medical exemption, in an attempt to protect residents. This legislation will apply to workers directly employed by the CQC registered care home, those employed by an agency and deployed by the care home, volunteers deployed in the care home and those coming into care homes to do other work, e.g. hairdressers, tradespeople, healthcare workers. Watch this space for further updates following further consultation on this matter.