The Government has issued new guidance for employers in England on how to reduce the spread of respiratory infections, including COVID-19, in the workplace. The new guidance replaces the previous industry-specific guidance and covers wider respiratory infections – not just COVID-19. This briefing by Mills & Reeve explores the issues.

The tone of the new guidance and public health advice reflects the Government’s view that, despite historically high infection numbers, COVID-19 should now be treated by employers as another respiratory infection similar to flu.

Employers are no longer legally required to explicitly consider COVID-19 in their statutory risk assessments or put in place specific control measures to reduce the spread of COVID-19 at work. However, employers must continue to comply with all relevant health and safety legislation and there are specific obligations to protect workers who come into contact with COVID-19 as part of their work activities. The new employer guidance also encourages employers to take actions to reduce the spread of respiratory illness within the workplace, such as by encouraging vaccination, ensuring good ventilation and by maintaining a clean working environment. Employers should continue to have regard to available guidance on protecting those who may be at higher risk from COVID-19, including advice from public health bodies and other government departments.

Employers are not required to report a COVID-19 outbreak in the workplace to their local public health team. However, there is separate guidance on when employers should make a report under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR). Employers must also continue to consult with workers or their representatives about any changes they make which affect health and safety.

Workers who have symptoms of a respiratory infection or a positive COVID-19 test are advised to follow the new guidance for people with symptoms of a respiratory infection including COVID-19. There is no absolute requirement in this guidance for workers to self-isolate if they have symptoms or a positive COVID test. However, the Government states that people with symptoms should ‘try’ to work from home and avoid contact with other people, particularly those who are vulnerable, until they no longer feel unwell. Asymptomatic workers who have a positive COVID-19 test should follow the same advice as those with symptoms for a period of five days to protect others.

As there are no longer specific COVID-19 provisions in the Statutory Sick Pay Regulations, if an asymptomatic worker with a positive COVID test is unable to work from home but the employer does not wish for them to attend the office, it is likely that the employer will need to suspend the worker on full pay for the period they wish them to remain at home or potentially amend their occupational sick pay scheme to cater for such a situation. Employees who are unwell and experiencing symptoms of a respiratory infection may be eligible for statutory or occupational sick pay in the usual way.

There is new guidance for workers who were previously regarded as clinically extremely vulnerable. This makes clear that most of these people are now well protected from their vaccination and booster doses and are no longer at a substantially greater risk than the general population. They are advised to follow the same guidance as everyone else on staying safe and preventing the spread of COVID-19, as well as any further advice from their doctor. There is specific guidance for those individuals who are immunosuppressed or who have conditions which mean their immune system places them at higher risk. Pregnant women are also advised to contact their midwife or GP if they have a positive COVID-19 test or develop symptoms of a respiratory infection.

Rules around free testing have changed. In England, free testing is now only available for certain categories of individuals, including NHS patient-facing staff. Employers who have relied heavily on staff to take free lateral flow tests before attending work will have to decide whether they should be covering the cost from 1 April, unless the staff continue to be eligible for free tests.

Employers in the healthcare sector should also be aware that sector specific guidance has been issued on managing healthcare staff with symptoms of a respiratory infection. This guidance should be followed by healthcare employers. Different guidance has also been issued for those working in social care settings.

As in the period before 1 April, employers will again need to make a tricky decision about whether to follow government guidance (as modified), adopt stricter measures, or limit themselves to the bare legal requirements, balancing their duty to maintain a safe working environment with the wishes of their workforce and impact on productivity.