Work from home guidance as Omicron forces a move to ‘Plan B’ in England

(Correct as of 9th December 2021)

With Christmas fast approaching, news of a new COVID-19 variant and changes to guidance and restrictions, it would seem we are now ‘in the bleak mid-winter.’ Casting our minds back to December 2020 brings memories of repeated changes in rules and restrictions on hospitality, work and social gatherings. It is difficult not to feel a sense of déjà vu as December 2021 unfolds.

At the end of November, the new ‘Omicron’ variant was detected in South Africa. This has been described as the most heavily mutated variant of the COVID-19 virus so far. Tests are ongoing to establish what this will mean on a clinical level as to whether will it be more transmissible, cause more severe disease, or evade vaccines, While uncertainty remains over the extent to which this new variant may halt or, at the least, slow down the progress made in pandemic, it is clear that the UK Government and its devolved administrations are taking this variant very seriously.

In addition to new travel restrictions, the UK is beginning to see other cautions introduced in a bid to stem the new variant.

England – Plan B

In September 2021, it was announced by the UK Government that ‘Plan B’ would only be used in the case that the NHS was likely to come under sustainable pressure. On 8 December 2021 the UK Government announced its move to Plan B.

Plan B covers guidance and rules for England only. Over recent months, as the vaccination programme has progressed, England has taken a more relaxed approach to COVID guidance than some of its UK neighbours. Face coverings were not mandatory and a return to office working was encouraged. However, Plan B is essentially a U-turn on this approach.

From Friday 10 December, face coverings will become compulsory in most public indoor venues. But there will continue to be exemptions where it is ‘not practical to wear one’. For example, face masks will still not be required in hospitality settings. Although the UK Government ‘working safely’ guidance is still to be updated, the list of places where mandatory face coverings has been published and does not include a blanket inclusion of workplace and office settings. While face coverings must be worn by staff working in settings where the public are required to wear face coverings, for other indoor settings, businesses are only advised to consider asking their staff, customers or visitors to wear a face covering. There is no legal requirement under the proposed regulations to do so, but businesses should be aware of the health and safety obligations and risks when considering their approach to mask wearing.

In addition, from Monday 13 December those ‘who can’ will be advised to work from home. This is, presently, understood to form guidance only rather than forming part of the regulations. The guidance does permit that where someone cannot work effectively from home they should continue to attend the office, or where the employer concludes that in all the circumstances it is better for the employee to work from the office. For those that continue to go to the office, the updated guidance recommends taking lateral flow tests regularly.

Scotland

Scotland has consistently taken a more cautious approach throughout the pandemic. Face coverings have remained mandatory in public settings, including offices. Working from home guidance has also been different.

During the summer, a gradual return to offices was permitted to begin. However, the Scottish Government has continued to view home working as an effective measure in controlling the virus and has repeatedly asked employers to support employees to do this. The Scottish Government has also been vocal about its support for home working to become a more permanent feature of the workplace in Scotland.

On 7^th December 2021, First Minister Nicola Sturgeon asked for a return to home working as the default in response to the new Omicron variant. Whilst no new legislation or detailed guidance has been implemented, general guidance has been updated to outline that employers are again being encouraged to support a greater degree of home working, and employees encouraged to work from home if possible.

Given the concern surrounding Omicron and the usual winter pressure already on the NHS, it is anticipated that further restrictions are very possible.

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If you are unsure about how the latest guidance may affect your business, our team of specialist employment lawyers have been advising employers throughout the pandemic, and would be happy to assist your business.