All COVID rules were scrapped in England on 24th February 2022. But COVID is still present today.
That means you must now manage sickness absence, and staff safety, without the structure of COVID restrictions in place to guide you. Maybe you’ve already noticed some issues.
For example, What should you do if an employee turns up to work with COVID? Can you ask staff to work from home? Do their colleagues have concerns? What if they’re experiencing no symptoms?
In this article, our HR and health & safety consultants provide their insight into the issue. Remember, if you need immediate advice with a case of sickness absence or workplace safety, call today on 01455 858 132.
Sickness without restriction
Most legal requirements specific to coronavirus (COVID-19) have ended. However, you still have legal obligations around the health, safety and wellbeing of people at work.
By law, you have a 'duty of care' for staff and anyone else who visits the workplace. This duty extends to those working remotely, or from home.
This duty means you must:
- do all you reasonably can to protect the health, safety and wellbeing of people at work
- complete a risk assessment, and take reasonable steps to prevent harm
- consult staff, and any trade union or employee representatives, on any decisions that involve health and safety
Most businesses will have an existing health & safety risk assessment. If you haven’t already, you must consider COVID-19 as part of this. So, next time you review your assessment, begin to ask questions about how you can reduce the risk of transmission.
Particular care should be taken when considering how to protect staff who are at high risk of serious illness from COVID-19.
The above guidance applies to all businesses based in England. But what about those elsewhere in the UK?
Guidance on self-isolation will stay in place until the end of April. After that, all legal restrictions will have lifted. However, the Scottish government recommends the following precautions:
- Continuing with appropriate protective measures, such as mask-wearing
- Adapting operations and workplace practices in line with your risk assessment
- Maintaining a vigilant approach to managing COVID-19
Wales has removed the legal requirement to conduct a specific coronavirus risk assessment. There is, however, still a legal requirement for businesses to take steps to reduce COVID transmission in the workplace. This means you should make sure the risks are considered in your regular risk assessment.
Managing staff with COVID
The first point of concern – can someone who is sick with COVID legally come into work? The short answer is yes, if they feel well enough. If an employee has COVID and feels unable to perform their role, then they should take sickness absence following your existing policies.
Naturally, many business owners will have concerns that their workforce will become infected and impact the business as a whole. Or, maybe you have vulnerable staff members who are at increased risk should they catch Covid. So, what are your options?
Government guidance suggests staff who believe they have COVID should:
“Try to work from home if you can. If you are unable to work from home, talk to your employer about options available to you.”
You could require an employee to work from home if it was reasonable for them to do so. You could also stop an employee coming into work if they are COVID-positive. However, you may face some difficulty if you tried to force an employee to not work at all when they are willing to work. If you were to do this, you should keep the employee on full pay.
Of course, some roles just cannot be done remotely. In these cases, you would lean on your risk assessment. If done correctly, this should’ve highlighted areas of heightened risk and will provide a solution. Having certain measures in place, such as sanitising stations, or Perspex screens, will help reduce transmission.
As a final resort you could force an employee to take annual leave. However, this comes with its own risks and you must provide twice as many days’ notice as the number of days leave. So, for example, if you need an employee to take five days off, you must let them know ten days in advance.
Managing staff who refuse to come to work
What if an employee refuses to come to work because a colleague has COVID? Or, an employee has COVID and refuses to come work despite reassurances that appropriate measures are in place?
To begin, here are some steps to help make sure you don’t find yourself in this scenario:
- Take steps to keep everyone safe at work
- Reassure staff by telling them about the measures you’ve put in place
- Encourage staff to talk to you or a manager about any concerns
- Listen to any concerns staff may have and try to resolve them together
If you follow the above steps and an employee still refuses to come to work, you should arrange a meeting with them. This can be done virtually, if needed. In this meeting you should reaffirm the measures you have put in place to reduce the risk of transmission. Take the time to listen to their concerns. If possible, consider adjustments you can make to accommodate them.
Before making any definitive decisions, make sure you fully consider all options. Failure to do this may result in a claim of constructive dismissal. If you need support managing an employee who is refusing to come to work, speak to one of our HR team today on 01455 858 132.
Other legal considerations
These aren’t the only areas you need to consider. For example, you are obligated to make 'reasonable adjustments' for disabled staff. This includes:
- Flexibility with working hours
- Flexible working arrangements, such as home and hybrid working
- Other ways to travel to work, or providing extra car parking where possible
Then, you need to consider whether you’re putting staff at a detriment. A detriment can take many forms, but usually takes the form of:
- A reduction in hours
- Bullying or harassment
- Turning down training or pay rise requests without good reason
Employees are protected by law from being dismissed or experiencing any 'detriment' if they:
- Reasonably believe being at work or doing certain tasks would put them in serious and imminent danger
- Take reasonable steps over a health and safety issue, for example complaining about unsafe working conditions
- Inform their employer about their health and safety issue in an appropriate way
In these circumstances, and employee can refuse to work. If they are then treated less fairly by the employer as a result of this, they could make a claim to an employment tribunal.
If you were to dismiss an employee for raising concerns over a safety issue, this would be classed as automatically unfair.
Support managing COVID concerns
Just because COVID restrictions are gone doesn’t mean COVID concerns are too. Many employees will have worries, while others won’t think twice about coming to work while infected. Managing the fallout can be tough. Luckily, we’re here 24/7 to provide you with expert HR advice.
Call today for immediate answers to your issue on 01455 858 132.
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