Covid Update for Employers

Following the recent announcement, updated guidance advises that everyone who can work from home should do so. This is likely to remain in place for at least six weeks, with a review after three weeks. Whether or not workers will be attending the office is largely a matter for employers to decide after considering all the legal and practical risks. The government has also updated the rules on self-isolating which employers must follow.

Employers’ health and safety duties

All employers are under a legal duty to take reasonable care of the health and safety of their employees. With rising cases of Covid-19, it may be safer for employees to work from home than attend the office. Even with Covid precautions in place, office attendance could increase the likelihood of transmission not only whilst at the office but also on the commute if public transport is used. Employers will want to minimise the number of workers contracting Covid-19 to protect the health of their staff, their clients and ultimately to relieve the pressure on the NHS. An outbreak of Covid-19 would cause disruption to the employer’s business and may damage the reputation of the company if it was felt that large scale office attendance was the cause despite government guidance.

Risks of forcing reluctant staff into workplace

Given the current government guidance to work from home, employers should err on the side of caution if they want to make reluctant employees attend the office, especially where they are able to work effectively from home. There are several legal risks associated with forcing an employee to attend the office in these circumstances, especially if the employee is clinically vulnerable to Covid-19 or shares a household with a vulnerable person, is genuinely anxious about attending the office, or has a disability. Forcing genuinely anxious members of staff into the office will have a negative impact on employee relations. If an employer wanted to impose a policy requiring a wholesale return to the office the employer would need to make sure that it has strictly followed the government’s guidance on reducing the risk of transmission in their workplace to avoid potential legal claims from their employees.

Compelling reasons for staff to attend office

Conversely, it is widely accepted that mental health and wellbeing suffered when staff had to work from home. In many cases, there may be good reasons for workers to attend the office, even if they are practically able to perform their role from home. Employers need to consider whether home working is appropriate for workers facing mental or physical health difficulties, or those with a particularly challenging home working environment. Employers should take the time to consult with their staff to ensure they understand each individuals’ circumstances and take them into account when making decisions about where they should work in order to prevent any discrimination claims.

Consider where staff should work on case-by-case basis

Employers should avoid introducing blanket policies about any requirement to work from home or from the office. Instead, they should consider each employee’s circumstances on a case-by-case basis, ensuring that any risks are appropriately assessed and recorded. Given the recent development with the Omicron variant and the new guidance to work from home, employers should update their health and safety risk assessments and take appropriate steps to prevent and minimise identified hazards, both for those attending the office and for those working from home.

New rules on self-isolation

From 14 December, people who are fully vaccinated and identified as a contact of someone with Covid-19 (whether the Omicron variant or otherwise) should take an NHS rapid lateral flow test every day for seven days. They do not need to self-isolate providing they receive a negative test result each day. These new rules replace the requirement for fully vaccinated close contacts of the Omicron variant to self-isolate for ten days.

Limit contact during seven-day testing period

Anyone identified as a close contact of a positive case of Covid-19 is strongly advised to limit contact with people outside their household, especially in crowded or enclosed spaces, and with anyone who is more vulnerable, during the seven-day test period. They are advised to follow guidance on wearing face coverings and working from home where possible. In view of this advice, employers may consider requiring close contacts to work from home during the seven-day testing period if they otherwise would not.

Unvaccinated members of staff

Anyone who has not received two Covid-19 vaccinations at least 14 days before contact with a positive case must self-isolate for ten days. Employers are liable to a fine of up to £10,000 if they knowingly allow an employee to attend the workplace in breach of a legal requirement to self-isolate. The option to undertake daily testing is not available to the unvaccinated unless they are unable to be vaccinated for clinical reasons (in reality, this will apply only to a very small number of people) or are part of an approved clinical trial for Covid-19. Employers should expect possible higher levels of absence from unvaccinated members of the workforce.

Data protection

The new self-isolation rules give employers valid reasons to know their employees’ vaccination status. This information is classed as special category data under data protection legislation and if employers ask employees to disclose their vaccination status, they will need to first conduct a data protection impact assessment and ensure the data is processed lawfully.

If you need employment advise please contact a member of the Employment Team on or by telephone on 0118 951 6621.