Can employees who have tested positive for Covid now come into work?

On 24 February 2022 the Government removed the legal requirement for people in England who test positive for coronavirus to self-isolate. This has caused some confusion in relation to whether employees who have tested positive but who feel well enough to come into work, can do so. With rates of infection rising again recently but with many people feeling only mildly unwell or asymptomatic, it could be tempting for employees to come into work, especially when they are not entitled to company sick pay and would only be entitled to Statutory Sick Pay (SSP). However, there is a clear risk to employers of allowing this, as we outline below.

Government guidance

Although the legal requirement to self-isolate has been removed, the current Government guidance issued on 1 April 2022 is that anyone testing positive should “try to stay at home” and avoid contact with other people for 5 days after the day they took their test. If someone feels well enough to work and their role can be done from home, then employers could of course facilitate home working.

It is now possible in some circumstances for employees to return to work sooner than was previously the case, when those who tested positive were required to self-isolate for 10 days. There is nothing in the latest guidance that expressly states how long a person needs to be away from the workplace for. Instead it suggests that if at the end of the first 5 days, a person still has a high temperature or feels unwell, they should try to follow the advice to try to stay at home until they feel well enough to resume normal activities and they no longer have a high temperature if they had one.

It is also noted that although many people will no longer be infectious to others after 5 days, some people may be infectious to other people for up to 10 days from the start of their infection. They should avoid meeting people at higher risk of becoming seriously unwell from coronavirus, especially those whose immune system means that they are at higher risk of serious illness from coronavirus, despite vaccination, for 10 days after the day they took their test.

SSP

For those employees who do not have a contractual entitlement to company sick pay, the current guidance for SSP states that from 25 March 2022, SSP is available from the fourth day they are off sick and:

“If you’re eligible, you’ll be paid SSP for all the days you’re off sick that you normally would have worked, except for the first 3.

You’ll only be paid SSP for the first 3 working days you are off sick if either of the following apply:

• the period you were away from work started before 25 March 2022 and you were off sick because of coronavirus (COVID-19)
• you received SSP within the last 8 weeks, and that already included a 3-day waiting period before you were paid SSP”

SSP is currently paid at £96.35 a week, going up to £99.35 a week from 6 April 2022.

Health and safety considerations

Although the legal requirement to self-isolate has been removed, an employer who requires or allows an employee to attend the workplace if they have tested positive may be a breach of their legal obligations to protect the health and safety of their employees and others. The Health and Safety at Work Act 1974 sets out that employers must protect the health and safety at work of all employees, so far as is reasonably practicable. Breaches of the Act are prosecuted in the criminal courts.

There will also be implied terms with a contract of employment for an employer to take reasonable care of the health and safety of its employees and to take reasonable steps to provide a safe workplace and a safe system of work. If an employer were to fundamentally breach any of these implied terms then an employee (subject to them having two years’ service) could resign and make a claim for constructive unfair dismissal. Allowing an employee who has just tested positive into the workplace risks an outbreak of infections which could lead to multiple claims, along with the general damage that this would cause to the running of the business.

Therefore, employers should be mindful of both the Government guidance and their health and safety obligations when dealing with employees who have tested positive for coronavirus. The Government guidance may well change over time as infection rates rise and fall, so it is always worth employers taking legal advice if they are unsure of the current position.