The new year is a great time for some strategic HR planning. However, it remains an uncertain employment landscape due to the ongoing impact of the Omicron variant. The Government reviewed Plan B on Wednesday, following the Prime Minister’s press conference, and has confirmed that the current measures will remain in place until at least 26 January.

While no additional restrictions are currently envisaged, average daily infection rates of 180,000 cases are likely to have a considerable impact on employee absence from work over the coming weeks. Many businesses are already struggling to maintain effective client service levels and this is likely to continue for some time.  

In this article we provide a practical update on four recent Covid-19 legal developments, to assist with managing the ongoing impact for your business.

Plan B & working from home guidance

The current Plan B rules require, in summary: face coverings in most public spaces; Covid passports in some venues; and ongoing guidance that all office workers who can work from home should do so. We provided a detailed analysis of Plan B in our December 2021 HRlaw article.  

The confirmation this week that Plan B will remain in place means that the government’s current working from home guidance also continues to apply to employers. While most office-based employers will have all staff, or the vast majority, working from home at present, it is important to remember that there is no binding legal obligation on employees to stay away from the office this time round. The guidance is exactly that, rather than a legal requirement on employers or employees.

As such, the guidance itself recognises that there is no one-size-fits-all approach and that challenging home working environments, or mental or physical health issues, may all have an impact on whether employees choose to continue attending the office. Similarly, business and/or regulatory requirements (including, for example, the need to access certain IT equipment), may necessitate regular office attendance for certain employees.

Therefore, while it is permissible to continue to open the office for those who want or need to attend, an analysis of the business need for attendance, along with an updated Covid risk assessment and policy, remains best practice. There will be many employees who remain understandably reluctant to return to the office while infection levels remain at their current level. We advise employers to maintain their proportionate response, taking account of individual concerns and circumstances, and avoid requiring employees to return (while the guidance remains in place) if they are able to perform their role from home.  

Self-isolation can end after seven days (rather than 10 days)

The current self-isolation rules require people to self-isolate as soon as Covid-19 symptoms develop, or when they receive a positive test result (even if they do not have symptoms).

However, a new development in self-isolation advice in England may be helpful to employers who require employees to attend the workplace to perform their roles and are struggling with diminishing employee numbers.

Following updated self-isolation guidance, employees with symptoms or who test positive are now required to self-isolate for seven days instead of 10 days, provided they have had two negative lateral flow tests and do not have a high temperature.

If the first lateral flow test taken on day six is negative, then a second negative test taken at least 24 hours later will trigger the end of self-isolation on day seven. However, if the first lateral flow test is positive, then further tests would be needed on subsequent days, until two negative tests are received 24 hours apart, or the general 10-day self-isolation period has expired.

An employee who is under 18, fully-vaccinated, or medically exempt from vaccination and who shares a household with someone who is Covid-positive, is not required to self-isolate (but is advised to lateral flow test every day for seven days). It is not necessary to have received a booster jab in order to be considered fully vaccinated.

Office-based employers with staff working from home may find that the self-isolation requirements have little practical impact. For many roles it will be business as usual from the home office. However, a key issue for HR is ensuring that employees who test positive do not feel pressurised to return to their desks before they are well enough to do so.  

Employees can self-certify sickness absence for 28 days (rather than seven days)

The Statutory Sick Pay (Medical Evidence) Regulations 2021 have temporarily increased the sickness self-certification period to 28 days. Provided an employee’s absence commences between 10 December 2021 and 26 January 2022 (inclusive), employers must permit employees to self-certify their first 28 days of absence, rather than requiring the usual GP’s FIT note as medical evidence. This change was introduced pre-Christmas, to lift some of the burden on GP’s surgeries while booster vaccines are being administered.

By way of example, an employee who is absent from work on 26 January with e.g. work-related stress and anxiety, will be able to self-certify the first 28 days of subsequent continuous  absence. The employer will only be entitled to request supporting medical evidence for any period of absence which continues beyond 23 February.  

In contrast, if the same employee’s first day of absence is 27 January, then it will be necessary for them to provide a FIT note in the usual way in respect of any period of absence which continues beyond 3 February (i.e. absence longer than seven days). 

Reintroduction of SSP Rebate Scheme

UK-based small and medium-sized employers (with less than 250 employees as of 30 November 2021) will benefit from the Government’s recent reintroduction of the SSP Rebate Scheme. Employers can be refunded for up to two weeks’ worth of covid-related SSP costs for each employee absent with the virus. Helpfully, employers will still be able to claim for employees even if they have previously made a claim under the preceding scheme.

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