Living with Covid - Guidance for Employers

As we are now slowly returning to the office and restrictions are being eased, the guidance below may help you deal with any questions, issues and fears that your people may have about returning to work.

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1. Covid is Sensitive Personal Data under the Data Protection Act

Before the pandemic, we had data protection legislation which clearly stated that in an employment setting, absence records and reasons for absence are sensitive personal data, which have more stringent rules around disclosure and processing of that information. This meant that anything to do with anyone’s health should be treated very carefully and confidentially within organisations. Reasons for absence should not be discussed outside of those who genuinely do need to know, such as the manager of that individual and possibly their senior manager, and your HR function (whether outsourced or internal) who may need to advise the manager on how to manage that particular absence.

During the pandemic we have all become a little lax around observing an individual’s health privacy as everyone freely talks about whether or not they have been vaccinated and whether or not they have had Covid. This is purely natural as everyone seeks to share their experiences of Covid to help others, or compare notes, or to persuade other people to become vaccinated. However, the data protection legislation has not gone away and it has not changed, which means that as we begin to return to our workplaces, employers need to be mindful of the need to return to an environment where we observe people’s right to privacy regarding their health status.

As an employer, you may wish to remind your managers and your staff that they should not be discussing the reason for people’s illness, or indeed their vaccination status, with others who do not directly manage that individual. A briefing note or a short training session for managers to remind them all of their obligations under the data protection legislation may be a useful step to take as part of everyone’s reintegration into the workplace.

A lot of people still remain very scared of Covid, and we need to respect their feelings, while at the same seeking to return to as normal a life as possible, so that we can all learn to live confidently with Covid. After all, it is not going away and we must begin to treat it a bit like having a cold or a dose of flu.

 

2. Vaccination Status

As with Covid illness, vaccination status will be sensitive personal data as it involves an individual’s health and there is therefore no requirement for anyone to reveal their vaccination status. The only exception to this would be anyone who works in, or visits for work, a care home or the NHS. However as the Government is considering removing the mandate to be vaccinated for those who work in health care settings, even this requirement may cease in time.

A health care professional recently reminded us what the vaccine actually does, which we thought we would share with you. The vaccine does not stop people from getting covid; it just stops them being seriously ill with it in most cases, which makes someone’s vaccination status irrelevant to others. We know quite a few people who have had Covid since they have been fully vaccinated so just like the flu jab, it is given to protect the individual from becoming really ill and hopefully being hospitalised.

As an employer, it is good practise to take a supportive approach rather than a hostile one to those who are not vaccinated, as part of a risk assessment as to whether or not you really do need your people to be vaccinated. If, as we suspect, the Government removes the mandate for the health care sector, there should be no reason to ask anyone about their vaccination status.

 

3. Sick Pay

There has been a lot of commentary recently about big companies not paying Company Sick Pay for those who have not been vaccinated. At some stage, this may well be challenged through the Courts and found to be discriminatory, but in the meantime, our advice is to treat everyone the same whether or not they have been vaccinated. If they are ill and you pay Company sick pay, staff should receive it, regardless of their vaccination status. We believe taking the John Lewis approach is the right one for all employers:

In a blog post on LinkedIn, John Lewis’s group operations director, Andrew Murphy, told its 70,000-strong workforce: “We’re not going to make any change of this type.” He added: “We just don’t believe it’s right to create a link between a partner’s vaccination status and the pay they receive.”

If you have an employee who is taking advantage of Covid to have lots of time off, there are plenty of other ways of dealing with that issue, without refusing to pay them sick pay.

 

4. Returning people to Work

Initially, productivity blossomed for many companies due to people working from home but businesses soon realised that a lot of the informal social interaction that happens at work had been lost, such as informal mentoring of colleagues; informal development, which happens when people are listening to each other and providing informal feedback that will develop or improve performance, particularly with new starters; and informal collaboration on projects. The ability to toss ideas around as they come to you, with colleagues you are collaborating with on a project or proposal or to consider improvements, has been lost while people work from home. As someone said recently, “you don’t know what you don’t know”, so a return to the office will help address this.

However according to a You Gov survey, two thirds of employees are determined never to return to the office. Most of our clients are taking a cautious approach to returning to the workplace, allowing people to adopt some form of hybrid working for a period of time to come.

Government messaging is changing around returning to work so use favourable reasons for people to return, such as improving mentoring, development and collaboration, but also talk about the impact on customers and the business where home working has affected these.

If someone does refuse to return, without a valid reason, this will be unauthorised absence and so that individual should be unpaid. They are also likely to be refusing to follow a reasonable instruction to return so dismissal could be the ultimate outcome. We would however, urge patience and caution, around bringing everyone back to the workplace, with an abundance of good communication to explain why it is important for everyone to return.

 

5. Risk Assessments

On a final note, we would suggest you continue with your risk assessments in the normal way and ensure that hand sanitisers are available, cleaning is done regularly and there is good ventilation, without freezing everyone to death.

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If there is anything we can help you with, please get in touch.