The Omicron variant: Employers questions answered

On 24th November 2021, scientists in South Africa discovered the presence of a new variant of coronavirus, which has been named Omicron.

Early indicators appeared to show that the variant was more transmissible, and concerns have arisen as to how virulent the new variant is and whether the vaccines provide suitable efficacy against it. Much of this is unknown, however the first case in the UK was detected on 27th November 2021.

This announcement has understandably caused worldwide concern. Here at Avensure we have been assisting our clients throughout this pandemic and have seen first-hand how challenging this pandemic has been for business owners.

In this article, we consider the potential impact of this new variant by re-visiting some of the most commonly asked pandemic related questions posed by our clients.

The new variant may be more transmissible. Can I insist my employees are vaccinated or given a booster?

The current advice on vaccinations is that they are recommended but aren’t mandatory, apart from in CQC regulated care homes in England where COVID-19 vaccinations became mandatory on 11th November 2021.

Therefore, you are able to encourage employees to be vaccinated and get their boosters, but it isn’t something you can insist upon.

If staff need time off during their working hours to attend an appointment for their vaccinations, you are advised to allow this.

If you are in an industry where you provide support to sectors such as health and social care and feel you have a critical business need to require your staff to be vaccinated, then please discuss this with your Lead Consultant.

Can I ask my staff if they have had a vaccination/booster?

Apart from sectors where vaccinates are mandatory, employees do not have an obligation to inform their employer of their vaccine status.

However, most employees understand that their employer may wish to know this as part of their COVID-19 safety measures, so may volunteer this information without issue.

You need to bear in mind that information regarding vaccines is private medical information. Therefore, you have data protection obligations with regards to how and why this information is acquired and how/where it is stored.

Can I discipline someone for turning up to work when they have been in contact with someone with the Omicron variant?

Make sure you are very clear with your staff on communicating all current government guidance/rulings in place. This information is changing all the time and already varies depending on where you live in the UK.

Please visit https://www.gov.uk/coronavirus where you will see the current guidance for all areas of the UK.

If a member of staff breaches your rules or the current rules regarding self-isolation, testing and so on, then you may be able to take disciplinary action against that person.

How severe that disciplinary action is will depend on the individual circumstances, your sector and the impact of the breach. The onus is on the employer to show that the employee has deliberately breached the current rules and that they were aware of what those rules are.

It is coming to the end of our holiday year; staff are demanding that they be allowed to carry leave over into the next leave year due to the pandemic- will the new variant affect this?

The Working Time Regulations were amended last year to allow the carry-over of up to 4 weeks leave into the next 2 leave years that followed.

This applies where it is not ‘reasonably practicable’ for an employee to take some, or all, of their annual leave due to the pandemic. If this variant impacts on the ability of staff to book leave, then you should allow the carry-over of leave.

However, any arrangements for the carry-over of leave must be discussed and properly communicated with staff. If they have had ample opportunity this year to book their leave and are using the variant as an excuse, then they can’t demand their leave be carried over.

Please discuss this with your Lead Consultant before turning down requests to allow leave to be carried over and please note, that employees on long-term sick, maternity/paternity/adoption/shared parental leave, do have the right to carry untaken leave over into their next holiday year.

Can employees refuse to work if the government reintroduces the recommendation to work from home?

If the government advice to ‘work from home if you can’ is re-introduced (Scotland has already done this), then you should implement this.

This doesn’t mean employees can necessarily refuse to work, so if any staff are raising concerns, then find out as much information from them as you can and seek our advice.

The hospitality and travel industries are starting to see cancellations, and this is already impacting on our work levels. What if I don’t have enough work for my staff or must temporarily close the business?

If there is a temporary shortage of work, employers can consider lay off or short time working.

  • Lay off is where employees are not required to work and are not entitled to their contractual pay/salary.

Employees can be placed on lay off for their full contractual hours or a few day/s a week.

Contractual pay is not payable during lay off, but statutory guarantee pay is payable where at least 1 day of work is lost. The current rate in 2021 is £30 per day for a maximum of 5 days in a 3-month period.

Depending on the individual circumstances, an employee may be entitled to employment benefits during a period of lay off.

  • Short time working involves an employee’s contractual hours being temporarily reduced.

As no full days are lost, statutory guarantee pay is not payable, instead, employees are paid only for the hours that they work.

Please note- You are only able to use lay off or short time working where your contracts of employment or employment handbooks allow. It is also vital that you seek advice from our experts before doing so, so that we can provide the necessary paperwork.

What steps can employers take now?

You don’t need to wait for the government. Many organisations have already implemented changes which they could revert to and may wish to consider doing so now or in the coming weeks:

  • Re-introduce/continue working from home for those who can and whose roles will allow- consider using a hybrid working system or a rota
  • Revert to online meetings or appointments
  • Ensure your COVID-19 safety measures are up-to-date and that staff do not become complacent regarding basic hygiene measures such as hand sanitising and social distancing and so on.
  • Ensure staff who are in customer facing roles know your stance on policies such as face coverings and are given the necessary training and support to deal with members of the public who are resistant to your approach