Employment Law Advice

Welcome to our frequently asked questions (FAQs) page on Employment Law. Here you will find the latest advice and guidelines for healthcare professionals working during the current Covid-19 pandemic

In light of the Omicron variant, there have been some changes to public health guidance in relation to Covid -19.

Members should ensure they remain aware of the latest guidance from the relevant government and health departments and follow those guidelines.

What are the current changes in England?

England has moved to Plan B in response to the increase in the Omicron variant :

  • Wear a face covering in most indoor public places and on public transport
  • Get tested and self-isolate if required
  • Work from home, if you can
  • Get vaccinated
  • Let fresh air in if you meet indoors. Meeting outdoors is safer

With regards to self-isolating:

Self-isolate straight away and get a PCR test as soon as possible if you have any of these three symptoms of Covid-19, even if they are mild:

  • A high temperature
  • A new, continuous cough
  • A loss or change to your sense of smell or taste

You should also self-isolate straight away if:

  • You've tested positive for Covid-19 – this means you have the virus
  • Someone you live with has symptoms or tested positive (unless you are not required to self-isolate – check below if this applies to you)
  • You've been told to self-isolate following contact with someone who tested positive

When you do not need to self-isolate

If you live with or have been in contact with someone with Covid-19, you will not need to self-isolate if any of the following apply:

  • You're fully vaccinated – this means 14 days have passed since your final dose of a Covid-19 vaccine given by the NHS
  • You're under 18 years and six months old
  • You're taking part or have taken part in a Covid-19 vaccine trial
  • You're not able to get vaccinated for medical reasons

What are the current changes in Scotland?

  • The rules on self-isolation for household contacts has changed
  • If you’re identified as a household contact of a positive Covid-19 case, you are advised to self-isolate for seven days - irrespective of vaccination status, PCR test result and age
  • If you think you have Covid-19 symptoms you should self-isolate immediately and take a PCR test
  • If you don't have symptoms, make sure you do a lateral flow test before you meet up with other households, travel to see people, or visit busy places. You can get them from test sites, pharmacies or online

Guidance for practices

In light of recent developments with the Omicron variant of the virus, this policy has now been updated by Scottish Government and healthcare staff who are considered close contacts of positive cases must now meet the updated criteria below:

  • You must have received first, second and booster doses of Covid-19 vaccine;

The following criteria from the previous guidance remains unchanged, and must also be met:

  • You must undertake PCR test (which returns a negative test result before returning to work)
  • You must remain asymptomatic
  • You must undertake daily lateral flow device (LFD) testing for the remainder of the seven day period

As previously, staff are expected to return to work if they meet these criteria, and must comply with ongoing LFD testing requirements.

Please see additional FAQs below.

  • What are staff due to be paid if they are off sick due to catching Covid-19 and is this different from pay if they are self-isolating?

    If an employee is off sick with a diagnosis or symptoms of Covid-19, then the practice’s usual sick leave and pay entitlements apply as any other period of sick leave.

    If an employee is required to self-isolate, as a minimum, Statutory Sick Pay (SSP) is to be paid from day one for those who are absent due to Covid-19, rather than day four, and practice’s can claim back two weeks’ SSP.

    Long Covid 

    If an employee has Long Covid then they should be following the long term absence reporting process. It is likely that if they are off longer term then consent to refer them to occupational health should be sought. It has yet to be determined by case law whether Long Covid falls under the Disability Discrimination Act so further health advice should be obtained where possible.
     
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  • What is the situation regarding annual leave?

    The rules relating to the carrying forward of annual leave were extended in 2020 in response to the coronavirus outbreak. 

    The statutory four weeks provided for under the EU Working Time Directive can be carried forward and taken in the two leave years immediately following the year in respect of which it was due where it was "not reasonably practicable" to have taken it as a result of the effects of coronavirus.

    Employers are also able to require employees to take a period of holiday by giving them double the difference in notice, so 10 days’ notice is required for a five day holiday period.

    If an employee needs to quarantine after a foreign holiday, if they are able to work from home for the isolation period then this may not have an impact on their employment and this is the ideal option for the least impact. However this is not always possible for all roles within a medical or dental practice and homeworking lends itself to some roles better than others. We have also had feedback that IT equipment is in short supply so this is an added hurdle. 

    You are able to ask your employees to use annual leave to cover the isolation period but if they don’t have sufficient leave then you may have to come to an agreement with the employee using unpaid leave. 

    Unless the employee is exhibiting coronavirus symptoms then we suggest that the use of statutory or contractual sick pay does not apply in this case. 

    Those employees who wish to travel to a country where there are quarantine laws to be followed on their return must get this period approved by the practice. As stated earlier, working from home is the best option here but if not possible then additional annual leave or unpaid leave must be applied for. It may not be practical to have an employee out the practice for an additional two weeks so you are in a position to decline an extended period of leave. You should ensure that your annual leave policy is updated and shared around staff so that they know to apply for the leave (including the isolation period) and ensure it is approved before booking any foreign trips. Close
  • What should I do if an employee needs time off for childcare issues?

    Employees are entitled to unpaid time off work to help someone who depends on them in an unexpected event or emergency (Emergency Time off For Dependants Leave). This would apply to situations relating to coronavirus, such as if they have children they need to look after or arrange childcare for because their school has closed. If an employee still requests time off for childcare despite these provisions, there's no statutory right to pay for this time off, but some employers might offer pay depending on the contract or practice policy or a period of annual leave.

    The amount of time off an employee takes to look after someone must be reasonable for the situation.  Close
  • Can staff be forced to have the vaccine?

    There is current Government consultation for covid vaccines to become mandatory for Healthcare workers in England from 1st April in 2022, following the mandatory obligation in care homes. If this does become a mandatory requirement, then staff who do not have their vaccines and do not have a medical reason for not being vaccinated, will be at risk of losing their job. 

    For those in Scotland, a practice can encourage and support their employees to be vaccinated but it cannot be insisted upon. Practices should be careful as employees may have reasons for not wishing to be vaccinated that are protected under the Equality Act 2010.
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