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Living with COVID | What if my employee tests positive?

Written by James Tamm on 11 March 2022

England has now embarked on the government’s ‘living with COVID’ plan. But for employers, the end of restrictions will spark questions and concerns, not least regarding employees who test positive for COVID-19.

After years of self-isolation requirements, COVID-positive employees can now legally enter the workplace as of 24 February. They are also under no obligation to disclose this information to their employer. Instead, Downing Street has said there will be “guidance” for those who have COVID not to go to work.

From 1 April, even the recommendation to self-isolate will be scrapped, and people will simply be asked to “exercise personal responsibility”. What exactly this looks like is somewhat ambiguous.

So, with employers once again left to make their own determinations, here’s what you need to know from an employment law perspective.

Can we ask employees with COVID to come to work?

In theory, yes. The real question is, do you really want to do that?

Whilst employees are no longer legally required to stay away from the workplace, as an employer, you still have a duty under health and safety legislation to look after the health and safety of your employees and anyone else who might be affected by your organisation’s activities, including customers and other visitors. It’s easy to see how this duty could be breached by instructing a COVID-positive employee to attend work.

What’s more, the last thing any employer wants is a COVID outbreak at work, and this remains a real risk. While the person in question might be fit to attend work, that doesn’t mean everyone who contracts virus will be similarly affected. As well as putting people’s health at risk, an outbreak could leave businesses short staffed, which will be of particular concern in the current climate given the ongoing staffing shortages many sectors are experiencing.

It’s also likely that, while some will be willing to come into work with COVID, others will want to exercise caution. In this scenario, it could be difficult to discipline the employee for refusing to work, as this order may not amount to a reasonable management instruction.

As a result, assuming the employee is well enough, the safest and arguably smartest option would be to allow homeworking, if that option exists for their role. To that end, it would be useful to have a hybrid or homeworking policy in place setting out how that would work in practice. If you don’t have one already, you can download our template policy below.

Home/Hybrid Working Policy

This sample policy sets out the process employees should follow if they wish to request home/hybrid working and the conditions that apply if the request is granted.

What if the employee is too sick to attend work?

Check whether the employee is entitled to contractual sick pay; if they are not, then at present they will be entitled to statutory sick pay (SSP) from day one of absence under the special COVID provisions within the Statutory Sick Pay Regulations.

Note that, from 24 March, these provisions will cease to apply, and COVID-related sickness or self-isolation will no longer mean an individual is automatically deemed incapacitated and entitled to SSP from day one of their sickness or self-isolation. Therefore, from this date, absence due to COVID will be treated like any other absence, and the usual three waiting days before SSP kicks will apply once again.

What if the employee agrees to work?

If a COVID-positive employee is willing or even insistent that they want to come into work now restrictions have been lifted, then employers have a decision to make. You could allow them to do so, or you could ask that they stay at home and wait for a negative test.

All things considered, allowing an employee with COVID to attend work may not be the best idea, at least not before 24 March. Again, up until that date, anyone who is sick or self-isolating due to COVID is automatically deemed to be incapacitated and will be entitled to SSP from day one of their sickness or self-isolation, rather than the usual day four. Therefore, if the employee stays at home and adheres to the self-isolation guidance, they will be entitled to SSP and contractual sick pay if applicable.

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Can we insist they stay at home?

If the employee wants to come into work but you would prefer them to remain at home, keep in mind that refusing to allow an employee to attend work could potentially amount to a breach of contract.

Generally, there is a contractual obligation on the employer to provide work and the employee to complete it. As such, if an employee shows up for work and is sent away, the employer has breached the contract. One way around this would be to pay the employee in full for the time they are told to stay at home.

Up until 24 March, employers could argue that a positive COVID test automatically triggers an entitlement to SSP and therefore, by paying just SSP as opposed to full pay, they won’t have done anything wrong. However, that argument will disappear after that date. From then on, if you instruct someone to stay at home following a positive test, it’s likely you will have to pay them in full. Understandably, businesses might not want to do that, or even be in a position to.

Ultimately, this new world of recommended rather than mandatory self-isolation provides the perfect storm and employers will no doubt be forced to make difficult decisions – essentially weighing up commercial risks against health and safety risks. Unfortunately, like many COVID-related employment conundrums, there is no easy answer.

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Get your team back on track

With the end to legally-mandated self-isolation, testing for close contacts and certain support/services, plus the requirement to consider COVID-19 in your risk assessments soon to be revoked, employers will inevitably face workforce issues once restrictions end.

From managing COVID cases to dealing with refusals to work from anxious employees or those who would prefer to work from home, WorkNest gives you access to unlimited advice and support from dedicated Employment Law and HR professionals so you can resolve people matters efficiently and compliantly.

For help you managing your post-restriction employment challenges, call 0345 224 8393 or request your free consultation using the button below.

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We combine the service quality of a law firm with the certainty of fixed-fee services to provide expert, solutions-focused Employment LawHR and Health & Safety support tailored to employers.

Call us on 0345 226 8393.

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