COVID-19 employment law and workforce FAQs

Set out below is an updated set of FAQs following the reintroduction of working from home and other changes in response to the Omicron variant in England from 13 December 2021.

Further information and a link to the relevant NJC circular is available on the LGA website.

Details of the different restrictions that apply in Wales can be found on the Welsh Government website. The Welsh workplace guidance has also been updated.
1. Where can I find Government guidance for employers and what has changed?

Government guidance for employers has been updated to reflect the fact that people should work at home if they can. 

The guidance continues to outline six priority actions for employers. They are:

  1. Carry out health and safety risk assessments
  2. Provide adequate ventilation
  3. Increase cleaning
  4. Ensure self-isolating staff do not attend a workplace
  5. Facilitate people ‘checking in’ at venues
  6. Communicate safety measures to staff and visitors
2. What are the main considerations under Stage 4 for local authorities as employers?

For employers reviewing provisions to ensure the safety of workplaces and that the particular circumstances of staff are duly considered remains key. This is because employers’ general duty of care to their workers remains in place, including their duties under the Health and Safety at Work Act 1974 and related legislation. The Health and Safety Executive (HSE) has produced guidance on keeping workplaces safe which emphasises the need to update risk assessments. It also reminds employers that considerations around ensuring adequate ventilation, sufficient cleaning and good hand hygiene remain in place. Employers should share the results of risk assessments with their employees and their trade unions and discuss any concerns they may have. Separate workplaces should be risk assessed accordingly, e.g. offices, vehicles, depots, call centres, schools etc, each of which may present their own particular challenges and may require specific COVID-related risks to be addressed.

3. What steps do employers have to take for any of their workers who are clinically extremely vulnerable?

The Government ended the shielding programme in September 2021, although the situation is being kept under review. The current advice in relation to those who are more at risk from COVID can be found on the HSE website and the NJC for Local Government Services also included advice in the NJC Circular COVID-19: working arrangements from 19 July.

4. Should we pay an employee who is self-isolating because they have been told to do so by NHS Test and Trace or the NHS COVID-19 app?

Employees who are self-isolating because they have been told to do so by NHS Test and Trace or the NHS COVID-19 app (but are otherwise in good health) are expected to carry out work where they can work from home. However, in the event that an employee’s role cannot be performed from home and they are therefore unable to work because they are self-isolating, then if they are on Green Book terms and conditions the National Joint Council for Local Government Services issued two circulars dated 12 February 2020 Novel Coronavirus: COVID-19 and 12 June 2020 COVID-19: return to work, test & trace and admission to hospital setting out advice about the Green Book sickness scheme. Part 2, paragraph 10.9 of that scheme provides:

“An employee who is prevented from attending work because of contact with infectious disease shall be entitled to receive normal pay. The period of absence on this account shall not be reckoned against the employee’s entitlements under this scheme.”

Therefore, these circulars confirm that in the event that an employee is required to self-isolate as a result of COVID-19, the provision above should be applied and that remains the case as confirmed in the NJC circular dated 19 July 2021. Similar, although not identical, provisions apply for fire and rescue employees on Grey Book terms and school staff on the Burgundy Book.

From 16 August (7 August in Wales) those who are fully vaccinated, and in the case of health and social care workers those who also return a negative PCR test result, do not have to self-isolate if they have been in close contact with a positive COVID-19 case (see FAQ 6 below).

There is no change to paragraph 10.9 of the Green Book referenced above, however, some employers may take the view that paragraph 10.9 and the similar provisions in the Grey and Burgundy Books should not apply to those who have not been fully vaccinated without good reason (a good reason being, for example, because they have not yet been offered both doses, or they are unable to get the vaccine on medical grounds). Therefore, the view may be that the reason why the person is prevented from attending work is not because they have been in contact with an infectious disease, but the fact that they have not taken up the offer of the vaccine without good reason. In such circumstances the employer may consider offering the employee the opportunity to use their paid annual leave to cover the period of self-isolation, or the chance to make up the lost days of work at another time, so they do not see a drop in pay.

If employers take that view of the application of the provisions above, they should be aware that if challenged, a court or tribunal may not be prepared to accept that interpretation. Instead the court or tribunal may conclude that ultimately the reason why the individual is self-isolating is still because they have been in close contact with a positive COVID-19 case, and therefore the individual is entitled to be paid under the provisions referred to above.

In any event, it is anticipated that employers may also want to find a balance between the public health implications, a desire to encourage vaccination take-up and a view of their contractual provisions, and in doing so conclude that even though the relevant provision of the Green, Grey or Burgundy Book may not apply, it is still appropriate to pay those who are self-isolating due to them being in close contact with a confirmed COVID-19 case and therefore potentially infectious. This is to ensure that people continue to isolate when necessary, and in doing so help to stop the spread of COVID-19 by not attending the workplace.

In all cases though the situation is different for those who are quarantining on returning from travel abroad (see FAQ 5 below).

5. Should we pay an employee who is quarantining because they have returned from travel abroad?

The situation differs for those who are quarantining because of the rules on travel abroad, compared to those who are self-isolating because they have been told to do so by NHS Test and Trace or the NHS COVID-19 app. This is because most of those quarantining after travel abroad will have known when they booked their trip that they would be required to quarantine on their return, or at least should reasonably have known that the rules could change at short notice meaning they would be required to quarantine. Therefore, for employees on Green Book terms the employer’s options remain as set out in the National Joint Council for Local Government Services circular dated 5 June 2020. That circular provides that there is no ‘one-size fits all answer’ to how employers may want to treat such employees but that:

“In practice, an employer could require employees who are quarantining and unable to work at home to:

  • take additional paid annual leave (from their usual leave allowance)
  • take unpaid annual leave
  • take special leave (paid / unpaid)
  • make up the 14 days’ leave over a period of time, so they do not incur a drop in pay [in England the standard quarantine requirement has since reduced to 10 days].  

These arrangements should be clear, understood and agreed by both parties before the employee embarks on leave that will require quarantine.”

Similar guidance is set out for fire and rescue employees on Grey Book terms in Fire and Rescue Services National Employers circular EMP/3/20, and for school staff on the Burgundy Book, in ASCL, LGA and NAHT guidance issued on 19 June 2020.  

6. Do the double vaccinated have to self-isolate if they have come into contact with a positive case?

Full details of the current rules are set out in the UK Health Security Agency guidance - Stay at home: guidance for households with possible or confirmed coronavirus (COVID-19) infection. The guidance covers both the rules relating to contacts of positive COVID-19 cases and the rules which apply to someone who tests positive. It includes the detailed rules on the circumstances in which self-isolation following a positive COVID-19 test may be ended earlier than the norm of 10 days.

There is separate dedicated guidance for health and social care staff  which contains a number of additional precautions to be taken where an employee has been a close contact of a person who has tested positive for COVID-19 and also the additional measures to be taken before ending an isolation period where an employee themselves has tested positive for COVID-19.

The position in Wales can be found on the Welsh Government website.

7. What are the employment law implications of hybrid working?

Although currently people should work from home when they can, many local authorities will no doubt continue to look at embedding hybrid models of working when a return to the office is advisable. Hybrid working features a mixture of office and remote working, whether that be at the employee’s home or elsewhere. There will be differences of approach in terms of whether the new ways of working become compulsory or remain optional for employees and there will be consideration as to whether existing contracts and policies provide the necessary powers and flexibilities for employers to impose changes. Details of those considerations are set out in Advisory Bulletin 691.

8. How do we manage an employee who refuses to attend their workplace?

The starting point is that the employee’s contract will normally contain a requirement for the employee to work on the employer’s premises, so on the face of it there is an express contractual requirement which the employer can seek to rely on. However, whether seeking to enforce that requirement is reasonable and lawful will depend on a number of factors, including importantly the employer’s reasons for the request and the employee’s reasons for the refusal.

The employer’s reasons for seeking a return will normally be linked to service delivery and business need. For example, it may be that a service can be delivered most effectively if the relevant employee is on the employer’s premises, or team meetings would be more productive as everyone is in the office on the same day. However, this has to be seen in the context that in many cases the employee is likely to have been working effectively at home since March 2020. The employer should explain therefore why the position has changed. That may be for example because the rest of a team are returning, or services are moving back to a face-to-face delivery model, rather than an online model. It may also be because there is evidence that work performed during the pandemic has been demonstrably less efficient and productive than working from an office. 

In the case of employees with less experience or in more junior roles, the employer may want them to be on the premises for supervisory or training reasons. A greater proportion of those employees may be younger, and so the question of indirect age discrimination could arise. However, if it does arise, it may be that the requirement could be justified on the basis that it is a proportionate means of achieving the employer’s service delivery and business needs. 

Turning then to the employee’s reasons for not wanting to return. These may be due to concerns around how safe the workplace is from a COVID-19 point of view. Provided the employer can show that it has taken all the appropriate health and safety measures, then it should normally be possible for the employer to insist on a return. If though the employee has an underlying health condition which means they are vulnerable to COVID-19 and/or they cannot be vaccinated, then special care should be taken to try to accommodate the employee continuing to work at home, especially as they may have a disability for the purposes of the Equality Act 2010. In that case, the duty to make reasonable adjustments arises. In any event, aside from COVID-19 issues, those with a disability may have found that there were advantages for their wellbeing and ability to perform work from home. Again, therefore the question arises of whether it is a reasonable adjustment to allow the employee to continue to work at home.

Another consideration is that any employee who has more than 26 weeks’ service has the right to make a flexible working request under section 80F of the Employment Rights Act 1996, which could include a request to continue working from home. Although employers do not have to grant such requests, they must consider them and follow the appropriate procedure (see the Acas Code on handling flexible working requests).

If this has been done, but the individual still refuses to attend or perform the task then this may constitute unauthorised absence or partial performance (ie where they are only prepared to carry out certain tasks rather than their full range of duties). This may be a disciplinary issue, which may justify withdrawal of pay. The manager should explain the individual’s contractual obligations and the consequences of refusing to work. If there is still no change in the individual’s position, immediate advice should be sought from HR to ensure an appropriate and consistent approach can be taken.

9. What are the main considerations when managing employees with Long COVID?

Long COVID takes a variety of forms but from an employment perspective the underlying feature is likely to be that the employee will be unable to work or perform all of their duties for periods of time. That means that it will often be appropriate to manage such cases under the employer’s sickness policies, albeit employers will want to approach such cases sensitively, taking into account the medical evidence, advice from occupational health and the employee’s views. In terms of medical evidence and occupational health advice, it may be that as Long COVID is a relatively new condition about which little is known that the evidence and advice will not be as clear as you might normally expect. In such cases, the employer will simply have to act on what evidence and advice there is. In any event, employers may also want to consider exercising their discretion to extend sick pay, where that might be appropriate.

As with all long-term or possibly persistent intermittent sickness cases, employers will want to consider whether adjustments can be made to the employee’s role to enable them to perform it on a full or part-time basis. Alternatively, the employer may need to consider whether the employee could be redeployed to another role that they would be able to perform, perhaps because there was greater scope for home working or flexible hours. This is particularly important because as Long COVID is a long-term illness, it may well be that the employee has a disability within the meaning of the Equality Act 2010. Therefore, employers may need to show that they have fulfilled their duties under the Act, including the duty to make reasonable adjustments. Ultimately though as with all long-term sickness cases it may be necessary for the employer to consider terminating the employee’s employment, but before doing so the employer will want to ensure it has taken all the steps it reasonably can before dismissing.  

10. What action can an employer take where an employee refuses its request to take a COVID-19 test?

The action will depend on the reasonableness of the request, taking into account the employer’s need for the employee to take the test, balanced against the reason for the employee’s refusal. Where the employer needs the employee to take the test for COVID-19 related health and safety reasons where those concerns cannot be reasonably addressed through other methods such as social distancing, for example where a person works in a care home, then the employer’s request is likely to be considered reasonable. Before taking any formal action though, the employer should discuss with the employee their reasons for refusing the request, taking care to explain in full why the employer needs them to take the test and reassuring them that the results of the test will so far as is possible be kept confidential and that the employer will comply with data protection requirements. During the time that those discussions are taking place the employer will in most cases need to ask the employee not to attend the workplace, albeit they should remain on full pay. In most cases though those discussions should be held without delay, bearing in mind the employee would otherwise have been attending the workplace.

If the employee does not provide any valid reason for refusing to take the test, for example their refusal is based on a belief that such tests are not otherwise mandatory or that taking such tests is uncomfortable, then the employer may need to consider moving to formal disciplinary action, suspending the employee on full pay during the process. The results of that process may then result in the employee being dismissed, should the employee continue to refuse to take a test without good reason. Where though the employee does provide a valid reason for not taking a test, such as where occupational health or a GP confirms they have a health condition preventing them taking such a test, then the employer should explore whether the employee could be redeployed to another role where COVID-related health and safety concerns can be addressed through other methods. Employers may need to consider their responsibilities under the Equality Act 2010 in this situation too. If though they cannot be redeployed, the employer might then need to consider terminating their employment, but that would not be for disciplinary reasons. Instead, termination should be on notice with full pay, albeit during the notice period the employee will not be able to attend the workplace. We would strongly recommend that employers take early advice in this scenario. Finally, if an employer is asking an employee to take a test in circumstances where COVID-19 related health and safety concerns can be addressed through other methods and/or where the employee’s role does not involve contact with those in a vulnerable group then the employer is unlikely to be able to take action against that employee, unless particular circumstances meant the employer could point to another valid reason justifying that request. In all cases though the key to resolving this issue will normally be resolved at the outset through clear and transparent discussions with employees and trade union representatives explaining the need for a test.

11. Can I ask for and record an employee’s vaccination status?

The Information Commissioner’s Office (ICO) has published guidance on addressing the data protection issues where employers intend to ask for and record the vaccine status of workers. A key part of that advice is that in order for such recording to be lawful the employer’s reason for doing so must be clear and necessary. It further provides that, “The sector you work in, the kind of work your staff do and the health and safety risks in your workplace should help you to decide if you have legitimate reasons to record whether your staff have had the COVID-19 vaccine. For example, if your employees:

•    work somewhere where they are more likely to encounter those infected with COVID-19; or
•    could pose a risk to clinically vulnerable individuals,

this may form part of your justification for collecting employee vaccination status.”

It will be more difficult though to justify the collection and recording of vaccination status where is it only for monitoring purposes.

It is recommended that employers read the ICO’s guidance in full when considering whether they can ask for and record employee’s vaccination status.

12. How is the Coronavirus Job Retention Scheme being phased out?

From 1 July 2021 the level of support is being phased out as follows.

During July the Government will cover up to 70 per cent of wages, capped at £2,187.50 per month, but employers will have to pay 10 per cent of the wages, as well as the employer National Insurance contributions and employer pension contributions on the full 80 per cent of wages.

During August and September, the Government’s contribution drops to 60 per cent of wages, capped at £1,875 per month, with employers having to pay 20 per cent of wages as well as the employer National Insurance contribution and employer pension contributions on the full 80 per cent of wages.

Further details of the scheme and its phasing out are on the Government’s website.

13. Where can I find information on managing someone who works in a care home but is not fully vaccinated?

Advice on the employment issues arising from this situation is contained in Advisory Bulletin 694.

Please note the Government published details of how to apply for and receive a COVID Pass medical exemption on 1 October 2021. The self-certification process cut-off date has been extended to 31 March (see Advisory Bulletin 697 for details).