Top employer Covid-19 conundrums for 2022

Our lives can appear as one continuous Covid-19 conundrum as we head into 2022: is it safe to see granny as we missed her at Christmas? How many LFTs is too many? Is it ok to stockpile test kits? Should I be vaccinated so I can play in the Australian Open later this month? That last one might only apply to Novak Djokovic but it’s a high-value conundrum when $4.4 million prize money is at stake!

What are the Covid-19 conundrums facing employers as we head into this year? Here are our top six along with some suggested solutions.

Do we have to pay contractual sick pay to staff self-isolating, because they are not vaccinated, but not suffering from Covid-19?
Self-isolating staff should where possible work from home. If they are unable to do so, then their entitlement will depend on the terms of your contractual sick pay policy. It is likely that they will not qualify for contractual sick pay because they are not sick. You may, as many employers did, have paid contractual sick pay on a discretionary basis for self-isolating staff earlier on in the pandemic when the rules were more stringent. However, if these payments were discretionary and no contractual changes were made then you are entitled to withdraw contractual sick pay provided this change is clearly communicated to the staff. Many would have seen the news that this is what IKEA (and other high street brands) decided to implement recently changing their arrangements and removing discretionary contractual pay going forward from unvaccinated staff who have to self-isolate. A couple of things to note 1) unvaccinated staff will still be entitled to statutory sick pay even if they are not unwell (although we expect the rules on this might also change in due course); and 2) staff may be unvaccinated due to a medical exemption – therefore if you do decide to withdraw discretionary contractual sick pay, you might want to take a different approach in respect of that group, as otherwise there may be potential discrimination. We would strongly advise that you seek specific advice on this.

Do we have to give paid time off to staff for their vaccinations/boosters?
There is no general employment right for staff to have paid time off for attending medical appointments. Again, there may be some provision in the contract for time off for medical appointments and vaccinations/boosters would most likely come under that definition. Given the protection vaccinations/boosters provide for staff and the effect this will have on sickness absence and staff shortage, employers would be sensible to make it easy for employees to be vaccinated. We would advise giving guidance and limits to any paid time off e.g., providing that staff are entitled to one hour paid absence for each vaccination and/booster.

Can we set up monitoring apps to check staff are remaining effective when working at home?
It is not unlawful to monitor staff, covertly or otherwise. That said, it is not generally good HR practice to over-monitor staff as it can result in staff feeling demotivated and demoralised. If employers are concerned about staff output and work, then it is more valuable and effective for line managers to raise work rates with team members individually, see if there are any reasons for the fall in productivity and what can be done to help. We would strongly advise that where performance monitoring apps are introduced, staff are advised of the same.

What do I do about a member of staff who wants to know whether everyone she works with is vaccinated?
The vaccination status of staff members is special category data and as such employers do not have the right to share it with colleagues, that’s assuming they have the information in any event. Whilst you will not be able to give this information to the staff member, you may want to discuss with them whether they are feeling unsafe in the workplace, what measures are in place to keep staff safe and whether anything can be done to help them (within reason of course!).

Can I stop a member of staff expressing their support of ‘anti-vaxxers’ on their social media feeds?
Staff have a right to express any views they may hold, provided they are not deemed criminal or likely to incite criminal activity. However, any posts must be clear that the views are the individual’s own and not those of the employer so as not to ‘bring the employer into disrepute’. Staff should be aware of this guidance, usually in a policy format. It only becomes a potential disciplinary issue, if, for whatever reason, they are linked with their employer either because of the words they post or something they are wearing or where the picture is taken, and their views are deemed likely to have a detrimental effect on their employer.

Can I request staff take regular LFTs before attending the workplace?
Requesting lateral flow tests (LFTs) as part of an employer’s steps to minimise the risk of infection and harm in the workplace is a reasonable instruction. It is, of course, difficult to enforce unless time and kits are provided in the workplace which few employers are doing at this stage in the pandemic. Employees who expressly refuse to take LFTs could potentially be disciplined for failure to carry out this reasonable instruction. That said, no steps should be taken without a longer conversation taking place as to their reasons and motivations. Whilst that is our advice at present, rumours of charging for LFTs as we move from pandemic to endemic may make the instruction an unreasonable one. Employers may want to continue to require testing, but it will have to consider the financial outlay and who is going to shoulder that if LFTs cease to be free of charge.

For more information

If you would like to discuss any of these conundrums please do contact Anna Dabek for further information and advice.

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