What Would Happen If... 1. Can we insist on employees working in the office or can they refuse to return? Do they have a genuine concern / reason for not wanting to return? Can you accommodate their wishes? Do they have a reasonable belief that there is a serious or imminent danger to their health (this right applies regardless of length of service)? Ultimate recourse is disciplinary procedure but be cautious! 2. Can we ask if staff have been vaccinated? Can you justify asking for this information? If not, it’s best avoided. Be careful about processing sensitive data, from a data protection perspective. Is it necessary to collect / process / store such data? See the ICO guidance here. 3. Can we make vaccinations mandatory? High risk approach and difficult to enforce without the risk of discrimination claims. ACAS advice is to support employees to have the vaccination e.g. time off, sick pay if necessary but not to force. The only current exception is staff working in Care Homes in England. 4. What can we do if an employee refuses to work with a colleague who has not been vaccinated? Don’t take a blanket approach. Is the refusal justifiable? Take time to understand their reasons and if they are reasonable. Take steps to resolve. Ultimate recourse is disciplinary procedure (failure to follow a reasonable management request) but be cautious! 5. What can we do if a colleague (double vaccinated) is at work but their spouse/partner has Covid? The legal position: From 16th August 2021, double vaccinated people in England will no longer be legally required to selfisolate if they are identified as a close contact of a positive COVID-19 case. Individuals who are unvaccinated, had one dose or had their second dose within the last two weeks still have a legal duty to self-isolate if contacted. For individuals who are double vaccinated and develop symptoms then the old ‘house rules’ still apply (i.e. you must self-isolate and take a PCR test, if you are contact traced and not fully vaccinated, you must legally self-isolate and if you are instructed to self-isolate, you must inform your employer). If you are double vaccinated, none of the above apply but you should continue to take caution, social distance, use facemasks and follow government guidelines. NHS Test & Trace will still contact you to let you know that you have been in close contact, and will then verify your vaccine status. It will be strongly recommended that you take a PCR test, but taking one is not required, and you will not have to self-isolate while waiting for the result. The NHS COVID-19 app is being updated to reflect these changes and will advise double vaccinated people who get ‘pinged’ to get tested. There will no longer be a legal duty to inform employers. The practicalities: Determine your policy and communicate clearly. Consider requirement to take a PCR test regardless of being symptomatic or not, with subsequent lateral flow tests. This could help give confidence to colleagues that the risk of the virus being passed on is satisfactorily mitigated.
What Would Happen If... 6. Can we require employees to take regular lateral flow tests? Is it legitimately necessary (risk assessment)? Introduce a Testing Policy (process, what happens if the result is positive, how data will be collected, processed and stored etc.). If employees refuse you should try to understand why. Loss of pay if they have to self-isolate? Will the absence count towards absence triggers? 7. Do we need to update our contracts to reflect hybrid working? For existing employees, give it time for hybrid working to settle before rushing to do this. In time, you may want to introduce a Hybrid Working Policy or include it in your Flexible Working Policy. Ultimately, you may need to update your standard terms e.g. normal place of work, hours of work, working patterns, salary, benefits, expenses, data protection, confidentiality. Ensure you retain the right to require them to attend the workplace if necessary. 8. How should we handle flexible working requests from staff who have worked at home during the pandemic? Consider the request properly, as per the usual procedure. May be more difficult to reject where the individual has worked from home successfully during the pandemic, but the past may not necessarily reflect the future e.g. customers were at home too during the pandemic and they are now back at their workplace. 9. Can we stop employees going on holiday to amber list countries? Could introduce a policy but it would be difficult to track and enforce. Under Regulation 15 (2) (b) of the Working Time Regulations you can give notice of withholding permission for an employee to take annual leave……but!! A better way might be to make it clear they have to take additional holiday or unpaid leave for the quarantine period (unless, of course, they can work from home). 10. What should we do with an employee who has been diagnosed with long-COVID, who’s symptoms come and go? Ensure you understand their individual situation. Could it amount to a disability under the Equality Act 2010? Discuss the specific effects of their symptoms and what measures could be put in place to help them cope with their workload. Refer to Occupational Health or seek consent to contact the employee’s GP. 11. How should we support an employee who has told us they have suffered from anxiety and depression during the pandemic? Could it amount to a disability under the Equality Act 2010? If so, you will need to consider reasonable adjustments.
If you would like any further support on any of these scenarios, or any HR challenge you're facing, please get in touch. info@petaurumsolutions.co.uk 0203 667 7720