On 21 February 2022, Prime Minister Boris Johnson unveiled the Government’s strategy for living with COVID-19 in England. This is based on four principles, including the removal of all remaining COVID-related legal restrictions.
The Health Protection (Coronavirus, Restrictions) (Self-Isolation etc) (Revocation) (England) Regulations 2022 (SI 2022/161) took effect on 24 February 2022, and revoked the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 (SI 2020/1045). This disposed of the legal requirement for individuals who have tested positive for COVID-19 to self-isolate. So, in response, what should individuals who test positive for COVID-19 do?
The answer can be found in new UK Health Security Agency (UK HSA) guidance, COVID-19: people with COVID-19 and their contacts, which was issued on 24 February 2022. The guidance explains that “if you have any of the main symptoms of COVID-19 or a positive test result, the public health advice is to stay at home and avoid contact with other people”. The “main symptoms” are a high temperature, a new continuous cough, and a loss of or change in the person’s normal sense of taste and smell. The guidance states that individuals displaying these symptoms should order a polymerase chain reaction (PCR) test, and are “advised to stay at home and avoid contact with other people while waiting for the test result”.
The guidance notes that “[m]any people will no longer be infectious after 5 days”, so those advised to stay at home can choose to take a lateral flow device (LFD) test either from five days after their symptoms started, or from the day their PCR test was taken if they suffered no symptoms, followed by a further LFD test the next day. If both test results are negative and the individual does not have a high temperature, “the risk that [they] are still infectious is much lower and [they] can safely return to [their] normal routine”.
If instead the individual’s LFD test result on the fifth day is positive, they can continue taking LFD tests until they receive two consecutive negative test results. The guidance says that affected individuals should not attend their workplace during this period.
What about close contacts? The guidance says that those who live with, or have stayed overnight in the home of someone who has COVID-19, should “work from home if [they] are able to do so”. This advice should be followed for ten days after the person with COVID-19’s symptoms started, or from the day that person’s PCR test was taken. If symptoms develop in this time, the contact should order a PCR test.
Other contacts of a person with COVID-19, who do not live with them and have not stayed in their home overnight, are not advised to work from home.
What should an employer pay an employee who is advised to stay at home? If an employee can work from home, it follows that they should be paid as normal.
If an employee is too sick to work, then normal sick pay provisions will apply, whether that’s Statutory Sick Pay (SSP) entitlement or enhanced contractual sick pay.
If neither of the above applies, because the employee cannot work from home and is perhaps asymptomatic or has mild symptoms, the employee may still be entitled to SSP or contractual sick pay.
Until 24 March 2022, SSP is available for employees who are self-isolating following a positive test for COVID-19 or because they live with someone who has tested positive.
As for contractual sick pay, an employee’s entitlement will depend on the specific terms of their contract, as well as any relevant sick pay policy. It is possible, albeit rare, that these could state that contractual sick pay is payable whenever the employee would be eligible to receive SSP.
It is also worth noting that under the Statutory Sick Pay Rebate Scheme, employers with fewer than 250 employees on 30 November 2021 may recover two weeks’ of SSP for each eligible employee who has a COVID-19 related absence from work between 21 December 2021 and 17 March 2022. The Scheme is due to end on 24 March 2022. Employers have until this date to submit new claims in respect of absence up to 17 March 2022, or to amend existing claims.
Looking forward, the current UK HSA guidance is due to remain in place to 1 April. On 21 February the Prime Minister explained that after 1 April, rather than explicitly advising individuals who test positive to stay at home, “we will encourage people with [COVID-19] symptoms to exercise personal responsibility, just as we encourage people who may have flu to be considerate to others”.
If you have any queries regarding this or any other employment matter, please do not hesitate to contact a member of the team.
