With effect from 1 April 2022, the UK Government has removed the remaining domestic COVID-19 restrictions in England. As part of this, the lengthy guidance for employers, “Working safely during coronavirus (COVID-19)”, has been replaced with new, much shorter, guidance from the UK Health Security Agency, “Reducing the spread of respiratory infections, including COVID-19, in the workplace."

The new guidance covers respiratory infections generally, rather than COVID-19 specifically, and follows broadly the areas covered in the previous guidance. The key points are:

• There is no longer a legal requirement for employers to consider COVID-19 in their health and safety risk assessments. However, employers still need to comply with their underlying legal duties to protect the health, safety and wellbeing of people at work and this is likely to require consideration of the ongoing risks posed by COVID-19. Employers should continue to follow the familiar advice to keep workplaces clean (particularly surfaces that are touched frequently), and to ensure good ventilation.

• Employers should continue to be aware of the risks posed to people in the workplace whose immune system means that they are at higher risk of serious illness from COVID-19. Employers should consider the specific guidance for people who are at high risk and whether any duties under the Equality Act 2010 may apply. A person at high risk may be a disabled person within the Equality Act definition and it may be appropriate to make specific adjustments to working patterns, such as allowing people at high risk to continue to work from home.
• Staff who are unwell with the symptoms of a respiratory illness such as COVID-19 should follow the current government guidance, which continues to advise that a person testing positive for COVID-19 should stay at home for five days (although there are no longer any legal requirements to self-isolate). The guidance states only that employers “may wish to consider how best to support their workforce to follow this guidance as far as possible.” This could include continuing with measures which employers have had in place throughout the pandemic such as permitting employees to work from home if they are able to do so and well enough, or paying sick pay to employees who cannot work from home or are too ill to work. Employers should however note that the statutory sick pay (SSP) rules have now reverted to the pre-COVID position so that an employee who is testing positive for COVID-19 is no longer deemed to be entitled to SSP but must actually be sick and incapable of work.
• Employers should encourage and enable vaccination – there is specific further guidance which makes a number of suggestions including that employers could have vaccination “champions” to promote vaccination, and could facilitate vaccination by giving breaks or time off “to support getting vaccinated."

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Updated Data Protection Guidance

In managing COVID-19 risks in the workplace, employers should continue to consider carefully how they process any personal health data about employees (including COVID-19 test results and vaccination status) and make sure that they comply with the latest data protection guidance. Current guidance reiterates that employers should:

• Consider why they need to collect COVID-19 related data and how it keeps the workplace safe;
• Consider whether they need to keep data previously collected during the pandemic and if not, dispose of it securely;
• Collect COVID-19 vaccination data only for an identified, necessary purpose and not “just in case;” and
• When keeping staff informed about COVID-19 cases in the workforce, not name individuals and not provide more information than is necessary.

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Next Steps

While COVID-19 case numbers remain relatively high, it is likely that most employers will retain some COVID-related measures, not least because they still need to comply with their underlying health and safety duties in relation to the risks posed by COVID-19. These include a duty on employers to consult with their employees (or their representatives) on health and safety matters, including those related to COVID-19 measures. However, with this new much shorter guidance there is more flexibility for employers to maintain the measures which are best suited to their business needs.

Employers will need to decide:

• What their policy will be in terms of requiring employees to test for COVID-19 (given that free testing is no longer widely available);
• Whether they require employees who test positive for COVID-19 to notify them of their test result;
• What their policy will be on sick pay and working at home particularly for employees who test positive but are asymptomatic; and
• Whether any reasonable adjustments to work arrangements may be appropriate for those who are reluctant to return to the office either because they are at high risk of developing a serious illness from COVID-19, or because they live with someone who is at high risk.