Many employers find staying up to date on the current COVID-19 guidelines challenging. This blog entry sets out the law and guidance on how to manage COVID-19 in the workplace, and any differences between the guidance for England and for Wales.

In England and Wales employers of over five workers should manage COVID-19 the same as any workplace hazards. They should (1) organise a “suitable and sufficient assessment” of risks and (2) identify measures to manage the risks. Failure to carry out these may result in a breach of Health and Safety Law.

The employer should make reasonable adjustments in order to minimise the risk of transmission of COVID-19. This could include:

• increasing ventilation in the workplace and minimising the use of poorly ventilated areas
• reducing the number of people each employee comes into contact with
• advising employees and customers to sanitise their hands.

Employers must make reasonable adjustments for those with disabilities and hidden disabilities under the equalities legislation.

Since the 18th of January 2022 in England, it is no longer a requirement for employees to work from home. Employers should discuss with workers arrangements for their return to the workplace. Those who are at higher risk of infection and/or of worse outcomes if infected may need additional precautions. For those who continue to work from home may need additional support with managing mental health difficulties.

In Wales, people should continue to work from home wherever possible. Certain employees may need to access the workplace, for example, those with mental health difficulties and/or difficult home circumstances to work from home. In such cases employers must take reasonable measures, such as ensuring a 2-metre distance is maintained between employees or encourage employees to take regular lateral flow tests.

It remains illegal for employers in both countries to allow or encourage those who have tested positive for COVID-19 and/or have been contacted by the NHS Track and Trace and told to isolate, into the workplace.

Guidance Around Vaccinations
Employers in England and Wales should “support staff in getting the COVID-19 vaccination once it is offered to them”. It is not mandatory for those in Wales and for most sectors in England to be vaccinated. Employers can, however, encourage staff to get vaccinated by:

• offering paid leave for vaccination appointments
• paying staff in full for absence due to vaccine side effects
• not recording vaccine-related absences.

Some employers may decide to require staff to be fully vaccinated. Discussions with staff and recognised Trade Union representatives on what steps should take place. Any decision must be written in company policy and “must be in line with the organisation’s existing disciplinary and grievance policy and follow discrimination law.”

Those who work in Care Quality Commission (CQC) care homes in England will be required by law to be vaccinated from COVID-19 by April 2022. Workers include:

• staff
• agency workers
• contractors/self-employed people hired to carry out certain jobs in the building
• those not employed by the care home but need to enter for work
• volunteers
• work experience students
• job applicants attending an interview

These also apply to those who work in England but live in Scotland or Wales. There are certain exemptions to this law which include:

• those who are medically exempt
• friends/family of a care home resident
• workers who do not enter the care home building
• someone providing emergency assistance/urgent maintenance
• emergency service members who need to enter the building to carry out their job
• those offering support to a resident after the death of a friend/relative
• those under the age of 18.

The employers of care homes should discuss this law with staff (including those temporarily away from work) and any recognised Trade Union representatives. There must be a person (registered with the CQC) who is responsible for checking who can enter the care home. This person is also responsible for records kept on employee vaccinations.

If staff refuse to get vaccinated without an exemption, employers should try to discuss the issue and resolve it informally. There may be options available to the employee, such as doing alternative work outside the care home premises, taking short-term paid (or unpaid) leave if they are waiting for vaccination or proof of exemption, or undertaking any training that can be done remotely for a limited time.

In such a case that the employer has exhausted all available options and is considering dismissal, full and fair procedure must be followed. This means that the employee has the right to appeal any decision. Employers should treat everyone fairly and follow discrimination law.

If you have any questions, please give us a call on 01392 247436 or email enquiries@perspectivehr.co.uk.

Thank you to Freja Hawkins for preparing this summary.