What does the ending of COVID-19 legal measures in England mean for businesses?

On 21 February 2022, the Prime Minister gave a statement to the House of Commons setting out the government's strategy for living with COVID-19 in England, as published in the government’s plan for living with COVID-19. As public health is a devolved matter in the UK, the devolved administrations in Scotland, Wales and Northern Ireland are setting out their own strategy.

For a summary of the remaining COVID-19 measures across the UK, FSB members can refer to our fact sheet on ‘Coronavirus health and safety measures for employers’ on the FSB Legal Hub.

In summary, legislation has been passed for England which from 24 February:

Removes the legal requirement to self-isolate following a positive test. From this date, government guidance for England states that adults and children who test positive are still advised to stay at home and avoid contact with other people. Although not a legal requirement, after 5 days, they may choose to take a Lateral Flow Device (LFD) followed by another the next day. If both tests are negative, and they do not have a temperature, they can safely return to their normal routine. Those who test positive should avoid contact with anyone in an ‘at risk’ group, including if they live in the same household. The government will publish specific guidance for staff in particularly vulnerable services, such as adult social care, healthcare, and prisons and places of detention.

Removes the legal requirement for workers to inform their employers that they are obliged to self-isolate.

Provides that close contacts are no longer be required to self-isolate or advised to take daily tests.

From this date, government guidance will no longer require fully vaccinated close contacts and those under the age of 18 to test daily for 7 days, and will remove the legal requirement for close contacts who are not fully vaccinated to self-isolate. In place of the legal requirement to self-isolate from 24 February, government guidance will be published for England which will set out the precautions that contacts can take to reduce risk to themselves and other people.

The end of the statutory requirement to self-isolate due to coronavirus brings England in line with Scotland and Northern Ireland, where there has never been a statutory requirement to self-isolate under regulations, although individuals are strongly advised to do so under public health advice when instructed by a contact tracer from the NHS.

Government guidance for England is that, until 1 April, people who test positive should still self-isolate and stay at home. This means that employers in England are still strongly advised not to permit employees to attend work where it is known that an employee has tested positive for coronavirus. From April and beyond, employers should still encourage staff not to attend work where they knowingly test positive for coronavirus and should make clear their own policies and expectations to staff in relation to highly contagious illnesses which pose a hazard to others.

Statutory Sick Pay for self-isolation

From 24 March, the COVID-19 provisions within existing Statutory Sick Pay (SSP) regulations and Employment and Support Allowance regulations will end. People with COVID-19 may still be eligible for SSP, subject to the normal conditions of entitlement (i.e. being too unwell to attend work) once the ‘deemed incapacity’ provisions for SSP due to self-isolation no longer apply. From 24 March, SSP will no longer be payable from day 1 if individuals are unable to work because they are unwell or self-isolating due to COVID-19.

The Coronavirus Statutory Sick Pay Rebate Scheme, which was reintroduced in January 2022 following FSB lobbying to help employers with fewer than 250 employees with COVID-related statutory sick pay (SSP) costs, will end on 17 March 2022, with employers having until 24 March to make claims and amend claims they've already submitted.

Together with the Trades Union Congress (TUC), FSB is encouraging the Government to learn lessons from the crisis and take “a fresh look at the issue” of sick pay by removing the financial disincentive for staff to remain at home if they are sick, including removing the lower earnings limit as a qualification for SSP and to support small businesses in meeting some of the costs of sick pay (on a permanent basis going forward and for all SSP costs, not just in relation to coronavirus). This is in the light of the “new awareness of the need for people to protect their health at work, and to avoid the spread of respiratory viruses in the workplace.”

What does the end of the statutory requirement to self-isolate due to coronavirus mean for employers in England?

Although there is no longer a separate statutory requirement to self-isolate due to coronavirus from 24 February onwards, employers should bear in mind that they have a statutory duty of care towards their staff and others in the workplace under existing health and safety legislation.  Employers should still take reasonable steps to reduce the risk of transmission of infectious disease in the workplace, as they would for other viruses which create a potential hazard for human health.

Reasonable mitigation may include instructing the employee to work from home where possible, or instructing the employee to stay away from their place of work until they provide acceptable evidence of a negative COVID-19 test result using a lateral flow test. It would be reasonable for the employer to meet the cost of the lateral flow test in that scenario, once free testing is no longer available for most people from 1 April. As set out above, until 1 April, government guidance remains in place ‘strongly advising’ employees to self-isolate (and not to attend their workplace) where they test positive for coronavirus.

However, as set out above, from 17 March employees will no longer be eligible for Statutory Sick Pay (SSP) simply on the basis that they are choosing to self-isolate due to coronavirus, or because their employer has instructed them to self-isolate and not attend work as a health and safety measure, where the employee is not otherwise incapacitated for work under the usual SSP rules (i.e. too unwell to work). Employers may still wish to choose to pay their employees sick pay in that scenario under their own sick pay policies, but this is likely to require employers to update their policies on sick pay. Where the employer instructs the employee not to attend work due to coronavirus once SSP due to self-isolation is no longer payable, arguably the employer will be required to pay employees at their normal rate of pay in that scenario.

Is it the case that employees no longer have to inform their employer if they have coronavirus from 24 February?

From 24 February, there is no longer a statutory requirement for employees to inform their employers if they test positive for COVID-19. Employers may, however, continue to require their employees, under their own policies, to inform their employer if they test positive for coronavirus, so that the employer can assess the risk of COVID-19 transmission in the workplace and put in place any reasonable mitigations, which may include agreeing for the employee to work from home where possible, or instructing the employee to stay at home. Employers will need to make clear their requirements and expectations under an updated policy and remove any reference to the need to self-isolate where this is required by law (in view of the fact that self-isolation is no longer a legal requirement, although it may be a reasonable management instruction to staff going forward).

What is the position regarding COVID testing?

From 1 April, free coronavirus testing for most of the public will no longer be available. Limited symptomatic testing will be available from this date for a small number of at-risk groups, such as over 75 year olds and those with a compromised immune system. The Government will set out further details on which groups will be eligible. Free symptomatic testing will remain available to social care staff.

It remains a voluntary decision for employers whether to run coronavirus testing programmes for their staff, or to encourage their staff to test from home before attending the workplace. Where employers continue to encourage their employees to regularly test before attending the workplace, from April 2022, when free testing will no longer be available for the vast majority of staff outside social care settings, employers may need to consider meeting the cost of lateral flow tests where they ask staff to continue with regular lateral flow testing.

COVID-status certification for entry to venues

From 1 April, the government will remove the current guidance on domestic voluntary COVID-status certification and will no longer recommend that certain venues use the NHS COVID Pass. The NHS COVID Pass will remain available within the NHS App for a limited period, to support the use of certification in other parts of the UK. The NHS App will continue to allow individuals access to their vaccination status for international travel, as well as their recovery status for travel to those overseas destinations that recognise it.

Government COVID-19 guidance for England

From 1 April, the government will update guidance setting out the ongoing steps that people withCOVID-19 should take to minimise contact with other people. From this date, government guidance will remove the health and safety requirement for every employer to explicitly consider COVID-19 in their risk assessments.

Although from April, government guidance will remove the health and safety requirement (under Existing guidance) to explicitly consider COVID-19 in employer risk assessments, employers should still consider this as part of the general risk assessment of biological hazards in the workplace. The main piece of legislation that applies to infections at work is The Control of Substances Hazardous to Health Regulations 2002. In light of this, ensuring good hygiene and cleaning in the workplace, alongside reasonable mitigation measures, is required.

It is likely that updated guidance from April will continue to emphasise the importance of following good hygiene and regular cleaning, as well as placing an emphasis on the importance of ventilation in the workplace to reduce the risk of transmission.

The government’s guidance for England on ’Working safely during coronavirus (COVID-19)' continues to apply, until it is replaced by new guidance by 1 April 2022 (once this has been published). Employers in England should still follow the government guidance for workplaces set out in the ‘Working Safely’ guidance until this is replaced with new guidance from 1 April 2022.