LIVING WITH COVID : THE UK TAKES THE LEAP

News and Context

The UK Government revealed its “Living with Covid” Plan on Monday, with Prime Minister Boris Johnson rolling out the plan in a press conference flanked by his chief scientific advisers.

The approach is one of the first in Europe to push the boundaries by relying on self-discipline vs government restrictions and regulation to control the virus, currently dominated by the Omicron strain, which is still showing substantial robustness with 65,000 or more daily infections in a country of over 60,000,000 (1 in 10,000 approximately), but with a declining hospitalization and death rate, the latter touted as below the normal death rate expected from such diseases at this time of year.

The underlying premise and proposition is that the UK should learn to live with Covid, and more particularly, get back to work to generate increased revenues to drive down the deficit and pay for new programmes required by the country to come fully out of the pandemic.

This approach, tried initially by Sweden, and then debunked by problems arsing from the more deadly Delta variant, means that companies at least in the UK, and increasingly in other countries will have to revert to prudent health and safety oversight in the workplace which could be deemed to be reasonable precautions. 

But what must be done in this scenario – whether in the UK or to be adapted by others – remains subject to development.

Key Points of Program

Prime Minister Boris Johnson announced the following changes:

From 24 February

1. The legal requirement to self-isolate following a positive test will end.
2. Fully vaccinated close contacts will no longer be asked to take a daily lateral flow test for 7 days.
3. Self-isolation support payments and national funding for practical support will end.
4. The Health Protection (Coronavirus, Restrictions) England No.3 Regulations will be revoked.  Local authorities will be required to manage outbreaks of Covid 19.
5. Routine Contact tracing by the NHS will end.
6. Workers will no longer be legally obliged to advise their employers when they are required to self-isolate

From 24 March

The Covid-19 provisions within the SSP and Employment Support Regulations are removed. 

From 1 April

1. The Government will update the guidance on what people with Covid-19 should do to minimise contact with other people.
2. Free symptomatic and asymptomatic testing will end.  This has been one of the mainstays of the UK’s attempts to keep Covid under control.  
3. Government Guidance on voluntary covid-status certification will end and it will no longer recommend certain venues use the NHS Covid pass.
4. The need to explicitly consider Covid-19 in health and safety risk assessments will end.
5. Working safely guidance will be replaced with new public health guidance.

What This Means to Health and Safety in the Workplace

As in most countries, the employer has a basic duty of care to employees to ensure so far as is reasonably practicable the health, safety, and welfare of employees.

With Covid removed from an explicit matter to be addressed in the workplace, it is questionable what the legal standard of review will be if no measures are taken to protect employees from infection.

Taking flu as an example, employees tend to fall into two camps, those who press on and come into work regardless of others’ safety and those that stay away. 

For a UK employer, whilst the Government may have relaxed the rules which the public are required to obey, they have a different but related set of issues to consider.  There are many who will have become used to working from home, not surrounded by their colleagues, some may have health conditions and others simply genuinely fearful of Covid and possibly more virulent strains. 

Employers will need to decide what protective mechanisms they will keep in place with the easing of Government controls to reassure the vulnerable and nervous, but also to ensure that they maintain a largely fit and healthy workforce.

Employers will need to consider what they do about social distancing in the workplace, what their attitude is going to be to maintaining screens and other reduction devices.  Where ventilation has been improved, will those improvements be maintained?  Should employers offer their employees regular lateral flow tests at the employer’s expense to help instill confidence that colleagues remain fit and healthy?  Should those who test positive be asked to remain at home, and if they are what will an employer pay them?  If the absence is mandated by the employer, then the entitlement is likely to be to full pay, rather than sick pay.     

What this all means is that employers will need to consider carefully what their response is going to be to the relaxing of restrictions and how best they can assure their employees that a return to the workplace will be secure.

Conclusion

The route out of the pandemic has begun.  Whether the UK has moved too quickly, only time will tell.  Even if rates rise in the coming weeks, it has been suggested that in six months infection levels are likely to be the same, whether restrictions are eased now or in a few weeks’ time. 

With the weather set to improve in the next few weeks with the coming of spring, and then summer, now may be a time to look forward with a positive attitude. 

The UK took steps to vaccinate its population ahead of Europe.  Stepping out of Covid restrictions now gives UK businesses an opportunity to drive its business recovery efforts forward.    

By Barry Stanton, Partner, Boyes Turner, a UK independent TALI affiliated firm, with Erik D. Lazar, TALI Director and overall global team leader, Labor Law Plus | Global Labor & Employment Law Services, TALI’s global labor and employment law division. 

For further information or for any assistance please contact uk@transatlanticlaw.com

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