Absence management

From 1 April 2022 the previous UK Government guidance is replaced with the following guidance:

• Public health principles for reducing the spread of respiratory infections, including COVID-19, in the workplace
• People with symptoms of a respiratory infection including COVID-19
• Living safely with respiratory infections, including COVID-19
• COVID-19: guidance for people whose immune system means they are at higher risk

• People who test positive for COVID-19 should stay at home for at least five days, avoiding contact with others, especially the vulnerable.
• People with any respiratory infection symptoms, including COVID-19, should stay at home and avoid contact with others until they no longer have a high temperature and are well enough to resume normal activities.

• Unwell staff (with COVID-19 or otherwise) should remain at home. Ill employees are entitled to SSP after day 3 or contractual sick pay, if that is the organisation’s usual policy.
• Sick pay policies should also address how long to ask staff to remain away from work. The government advice suggests at least five days and another sensible option may be to wait until they test negative for two consecutive days as under previous UK Government policy. 
• Linked to the above, employers should address who pays for tests.

If employees test positive for COVID-19 employers should, in most cases, tell employees to self-isolate for at least five days or until they test negative. Although the latest UK Government’s position is to leave matters to individual discretion, the five-day advice remains in place, so it seems sensible for employers to voluntarily maintain or adapt  their existing COVID-19 practices in the short to medium term whilst virus rates remain high. This may include requiring employees who test positive to work from home if they are well enough to do so. Employers may decide to pay other staff to remain at home for a short period if the nature of the job means they cannot work from home.

Employers must implement policies about what happens when a member of staff tests positive and take responsibility for implementing mitigations that are appropriate for their workplace and find their own strategies for managing risk. 

Employers should consult, educate and train staff on the practices and policies to be implemented.

Employers should consider the needs of those who are at greater risk of serious illness from COVID-19, such as those with compromised immune systems. There is specific guidance for these people. See above for more information.

SSP rules have returned to the pre-pandemic system. The rules surrounding SSP for those who test positive for COVID-19 are as follows:

• Workers who are ill: These workers are eligible for SSP from their fourth qualifying day of absence in the usual way. There are therefore three unpaid waiting days (unless the employer has a policy of paying for these as contractual sick pay).
• Workers who are well: Workers who are well or asymptomatic and are self-isolating only because they test positive are not entitled to SSP. This is because SSP only applies if staff indicate they are ill. 

• The ability to reclaim up to two weeks’ SSP for absences due to COVID-19 has ended. 
• The right to claim SSP from the first day of absence due to COVID-19 has also ended.

Employers can manage employees suffering from the effects of long COVID in a similar way to employees with other long-term health conditions, although some extra considerations may be appropriate.

More information is available in our report and guides on working with long COVID and our guide on managing employees with long-term health conditions.

There are many aspects employers should consider for staff who have caught coronavirus at work which has led to long COVID. At an early stage employers should check any employers’ liability, permanent health (PHI) or income protection insurance to assess the likelihood of long COVID claims being covered.

An employer's first priority must be to take steps to protect all staff from contracting COVID-19 at work. These measures will include having undertaken risk assessments and consideration of all aspects including testing, vaccination status, social distancing, ventilation, hand hygiene and home working in appropriate cases. Employers should also be able to show they have followed updated government and HSE guidance on how to mitigate virus spread and revisit measures regularly as new statistics, and guidance emerges.

Whatever steps are taken, some employers will face claims from employees with long COVID who attempt to prove that exposure occurred at work. It will, however, be difficult for employees to bring these claims as COVID-19 spreads rapidly and it will be difficult to prove an employer’s failure to take steps led to them catching the virus at work.

Although it will be difficult for employees to prove infection occurred in the workplace employers should follow UK Government guidance which places a high degree of responsibility on employers to honour their pre-existing legal duties to take care of employees’ health and safety.

Under the health and safety legislation and the law of negligence, employers have a duty to provide a safe working environment. Employers may be able to show they did not breach this duty if they can prove ongoing risk assessments and control measures were appropriately and properly enforced. One aspect of the legal tests will be if employers materially increased the risk of harm to their staff.

Potential compensation
Legal guidance about long COVID compensation will be given by the courts as cases start to emerge. For many employees it will be hard to prove that the employer’s breach of duty led to infection but if claims do emerge employers should check the likelihood of any employers’ liability insurance or other policies covering the claim.

For employers who are found liable for breach of their duty of care, then compensation for long COVID will vary substantially depending on severity and length of symptoms. If liability is established, then many cases will be resolved by negotiation and settlement incorporating any insurance pay-out. 

If long COVID sufferers manage to prove discrimination at work compensation could also include financial losses because of the discrimination including lost wages. There could also be compensation for injury to feelings including depression or extra amounts following particularly bad behaviour by an employer called ‘aggravated damages’.

Other potential claims include unfair dismissal, unpaid wages, notice and unpaid holiday pay, and failure to follow the flexible working request procedure.

Yes, employers need to review their approach to data protection in connection with COVID-19.

Restrictions have effectively now been lifted and employers need to check if there is a lawful basis to gather and process any data they are gathering on infections, testing and vaccination status.

The data may be justified in order to meet health and safety obligations but employers should check their precise rationale now that data is not needed for mandatory self-isolation after testing positive for COVID-19.

Following the disruption to schools during the pandemic employees may have concerns about future closures. The position regarding school openings and closures and the rules in place is complex and can change rapidly. Employers should check UK Government advice regularly. The latest guidance advises that children with COVID-19 should not go to school therefore employees may need to stay at home to look after them. Employers and employees should be as flexible as possible, with employers taking account of staff’s childcare responsibilities and individual circumstances. 

In the event of school closures or self-isolation, home working may be harder for single parents with young children and, because women tend to have more childcare responsibilities than men, employers may discriminate if they facilitate homeworking for male employees but indicate that it is not working for female ones. If an employee cannot focus at home because of caring for young children it may be possible to agree flexible working arrangements including adjustments to hours and times of work.

Employers of those employees who are unable to work from home have a number of other options, which are described below.

Flexible working

Employers are always obliged to consider flexible working requests. In the context of localised school closures, there are a number of options available, such as spreading working hours out by agreement so that employees can work when younger children are asleep.

Unpaid time off for dependants

Employees have the right to take unpaid time off for dependants which usually lasts only for a short time to organise their care. This period of unpaid leave enables employees to take action necessary because of an unexpected disruption or termination of arrangements for the care of that dependant. This would cover time off to arrange alternative childcare but does not cover extended time off for employees to look after their children themselves.

Unpaid parental leave

Employees who have been with the employer for more than a year can also take unpaid parental leave. Normally notice is needed but employers may agree to shorten the notice period. This leave is 18 weeks per child before the child turns 18 and must usually be taken in blocks of a week with a maximum of four weeks each year.

A rare alternative in some situations may be for the employee to take some annual leave. The benefit of this for the parent concerned is that it would be paid at their full rates.

Unpaid and other leave

If employers' operations are likely to be severely affected on a long-term basis, employers may consider plans such as a voluntary special leave policy on a temporary or longer basis where individuals can opt to take paid or unpaid leave. There could be some employees who are willing to take additional time off and would welcome a break, but others may struggle financially if they lose pay. Employers could consider offering a shorter working week or other flexible resourcing arrangements and communicate the business reasons to employees. You may wish to consider short-time and lay-off working arrangements - there's more information on Lay-offs and short-time working on the UK Government website.