England moves to Plan B – what do employers need to know?

Yesterday, the UK Parliament passed new legislation to combat the emerging Omicron variant.  The aim is to slow the spread of the variant to buy more time for booster jabs to be rolled out across the population and meet the ambitious target of offering them to all adults by the end of the year.  The new legislation follows the re-issuing of working from home (WFH) guidance last week. You can find our five key WFH action points for HR here.

What does it all mean for employers? In this article we cover:

1. The new rules and guidance – an overview
2. What does the new WFH guidance say?
3. What are the Covid Pass requirements?
4. What are employers doing in practice in light of the new developments?

1. The new rules and guidance – an overview

Amid concerns around the rapid spread of the Omicron variant, the UK Government and Parliament has recently passed a raft of legislation which (in summary) requires:

• face coverings to be worn in most public indoor venues, including shops, cinemas and theatres, but not hospitality settings such as pubs and restaurants (supplementing legislation already in force requiring them in shops and on public transport);
• close contacts of positive cases who are unvaccinated to self-isolate for 10 days, with a similar requirement on the double-vaccinated unless they take daily lateral flow tests showing negative results;   
• mandatory vaccinations for frontline NHS workers with effect from early 2022; and
• “Covid status certification” (via the NHS Covid Pass) to be mandatory for large events such as nightclubs, music venues, conferences, or sporting fixtures, with effect from today. 

Importantly for office based employers, the Government has introduced guidance that all office workers who can work from home should do so since Monday.  Unlike with the lockdowns of 2020 and early 2021, which featured binding legal obligations on individuals, this is guidance only and does not have any legal backing.  

However, as we discuss below, employers should not ignore it and must carefully consider their business requirements as far as attendance at the office is concerned.    

2. What does the new WFH guidance say?

On 8 December, the Government confirmed it would issue guidance requesting that people in England who can work from home should do so.  Conversely, anyone who cannot work from home should continue to attend their place of work, such as where their role must be completed in person.  

Those who need to attend their place of work are advised to consider taking lateral flow tests regularly to manage the risks during this period of high transmission of the Omicron variant.  This particularly includes those whose roles include close contact in a higher risk environment, or when spending prolonged periods of time with a vulnerable individual. 

The guidance acknowledges that mental or physical health issues may point towards allowing employees to continue to attend their place of work as normal, including for those with a “particularly challenging home working environment”. 

3. What are the Covid Pass requirements?

The Health Protection (Coronavirus, Restrictions) (Entry to Venues and Events) (England) Regulations 2021 were passed in Parliament with support of the opposition, despite a rebellion from 98 backbench Conservative MPs, and came into force today. 

The Regulations require certain venues to check the Covid status certification of attendees, who will need to provide evidence – via the NHS Covid Pass – that they have been double vaccinated or have tested negative for the virus via a lateral flow test within the past 48 hours. 

The events to which the Regulations apply include (subject to specific exceptions):

• nightclubs, dance halls, discos and other venues with a dancefloor open after 1.00 am;
• indoor music venues and theatres with 500 or more non-seated attendees;
• indoor exhibition halls and conference centres with 500 or more non-seated attendees;
• indoor sports stadiums of 500 or more people and outdoor stadiums with 4,000 or more people;
• outdoor events of 4,000 or more people not seated; and
• any event of 10,000 or more people. 

This requirement will be in force until 26 January next year. 

These requirements do not apply to other settings, including offices, bars or restaurants.

4. What are employers doing in practice in light of the new developments?

So far, it appears that many employers of office-based businesses are adopting the Government’s guidance for WFH, with most (sometimes all) staff working solely from home.  Many staff will be reluctant to attend the office anyway, in case their Christmas plans are ruined by exposure to Omicron, which seems to be even more transmissible than the Delta variant.

However, others have made it clear to their workforce that their premises remain open to all those who plan to attend the office. Many employers will be reluctant to fully reverse the progress made in returning to the office following lockdown restrictions. 

Whilst it is legally permissible to keep the office open for all those who want to attend, employers should take care to ensure:

• any instruction for an employee to attend the office is properly justified by a business need (such as a need to access equipment or software, for example) and proportionate to the circumstances;
• they do not attempt to force employees to attend the office against their will when it is reasonably practicable to follow the Government guidance and work from home;
• that they follow other guidance in place in respect of reducing Covid risks and protecting the health and safety of their staff, including the Government’s Working safely during coronavirus webpage, which is regularly updated; and
• they do not permit any employee to attend the office when the employee is required to self-isolate.     

We have not so far seen any meaningful increase by office-based employers in using the NHS Covid Pass as a means of reducing the likelihood of virus transmission in the office. The new legislation for Covid status certification does not apply to offices but there is nothing to stop employers from introducing a similar requirement on a voluntary basis. 

However, this approach is not without its risks – from both an employment law and data protection perspective – and many employers have taken a less interventionist approach so far. This might include encouraging employees to take twice-weekly lateral flow tests as a means of identifying asymptomatic cases. 

Employers should bear in mind that neither a negative test or vaccination is a cast-iron guarantee that a person is not carrying the virus and capable of passing it on to others. Not all asymptomatic cases are picked up by a test and it appears, from anecdotal evidence, that those suffering from Covid symptoms will not immediately register a positive test result. 

Because of this, employers should consider whether they should take a more stringent approach to ill-health and require anyone with any cold-like symptoms, even if they have a negative test result, to stay away from the office for a few days. 

Contact us

If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak to your usual Fox Williams contact.