Employers have been navigating the fast-changing and complex Covid-19 related legal landscape for over two years now. Although the rules have now been relaxed or lifted in most European countries, employers should not be any less vigilant when it comes to the health and safety of their workforce. A recent spike of new Covid-19 cases in several countries will require employers to continue to keep their workplace protocols under review. Forgetting about Covid-19 entirely could result in liability for employers.
In this blog post we explore the current measures and challenges for employers across Europe and in this other blog post, we look closer at the Covid-19 related risk at the workplace for pregnant women.
Return to the office, in any case?
Countries like Spain and the UK have removed the requirement to quarantine following a positive Covid-19 test result. Therefore, while in the UK government guidance is to stay at home and avoid contact with other people where possible and in Spain there is no specific recommendation in this regard, an employee who tests positive for Covid-19 is not prevented by law from returning to the office. In fact, in Spain, the employee would not be given any sick leave.
In such circumstances, two scenarios are possible. The first scenario is one where the employee does not want to work from home (even if the employer suggests doing so). The question that arises here is whether the employer can impose a home-working arrangement on the employee. In line with international standards set by the International Labour Organisation and the European Agency for Safety and Health at Work (‘EU-OSHA’), most legislation across Europe requires that employers ensure the health and safety of employees at the workplace. Therefore, not only should the employer consider the health of the employee who tested positive (who might be asymptomatic and therefore want to return to the office), the employer also has a responsibility to preserve the health of other employees who go to the office, particularly those who are more vulnerable (read more in this blog post here). With this in mind, depending on the jurisdiction, the employer might have a legally valid argument to justify imposing home-working arrangements on employees with Covid-19. Ultimately, employers will need to determine their approach to workplace attendance where individuals are testing positive for Covid-19. This is particularly difficult in jurisdictions such as the UK, where testing is no longer freely available.
The situation is more complex where the nature of the job does not allow the employee who tested positive to work from home. In this case, the employer should consider taking specific measures, such as isolating the employee if possible, ensuring social distance or imposing the use of masks (e.g., in Spain, now that the number of new cases is increasing, the government recommendation is to keep the mask in closed spaces). The employer may also consider whether the employee should be put in paid or unpaid leave. In Spain, sick leave is not an option in such cases (unless hospitalisation is required). Alternatively, employers may wish to continue paying full pay to employees in order to keep Covid-19 away from the workplace. This might open up the possibility of individuals exploiting the employer’s sickness absence policy, so employers will need to balance that risk with the broader risk to the workforce’s health if individuals who are unwell attend the workplace.
The second scenario is one where the employer relies on the lack of Covid-19 restrictions to impose a return to the office on all (or certain categories of) employees and does not provide any additional health and safety guidance. Given the obligation to ensure the health and safety of employees, employers are still recommended to take all relevant precautions (suggesting working from home, implementing social distancing where possible, providing hand sanitisers etc.) at the workplace in order to avoid any liability in relation to the potential spread of the virus at the workplace. Ultimately, employers should consider how best to support and enable their workplace to follow the guidance in their relevant jurisdiction.
In other countries like Austria, France, Germany and Italy, quarantine is still required following a positive Covid-19 test. The type of infection that triggers quarantine (e.g., symptomatic or asymptomatic), the length of the quarantine periods, the conditions to end the quarantine, and the conditions to return to the office differ across countries. You can read the details below:
|Requirement to quarantine||In case of a positive Covid-19 test.||In case of symptoms or of a positive Covid-19 test. If the employee cannot work from home, he/she is placed on sick leave and receives indemnities from the French social security.||In case of a positive Covid-19 test.||In case of a positive Covid-19 test (including asymptomatic employees).|
|Length of quarantine||Between 5 and 10 days (or longer in case of symptoms) in all federal states, but Vienna. In the federal state of Vienna, employees are obliged to isolate for at least 10 days.||Depends on whether the employee has been vaccinated or not (i.e. 7 days of isolation for fully vaccinated employees or 10 days for non-vaccinated employees).||10 days.||At least 10 days, for symptomatic employees or asymptomatic employees without the booster dose or with 2 doses of the vaccine more than 120 days before the positive test.|
Isolation ends provided that (i) they have been symptom-free for at least the last 3 days; and (ii) after the above period their Covid-19 test is negative.
|Early end of quarantine||In all federal states, but Vienna, it is possible for employees with a mild Covid-19 or with an asymptomatic infection, provided that they have been symptom-free for at least the last 48 hours. However, this is possible only after the 5th day of isolation.||It is possible, based on a negative Covid-19 test, made after 5 or 7 days of isolation at the earliest, depending on their vaccination status.||It is possible, at the earliest 5 days after the positive test by a negative Covid-19 antigen test, from an official testing centre.||Is is possible for asymptomatic employees with the booster dose or 2 doses of the vaccine within the last 120 days, after at least 7 days of quarantine, provided that they have a negative Covid-19 test.|
|Return to office||If employees go to the workplace after an early end of quarantine, they are obliged to wear a FFP2 mask (this can be avoided based on a negative Covid-19 test (PCR test or CT value above 30).||N/A||N/A||Employees hospitalized due to Covid-19 can return to workplace after the company doctor's approval.|
Coping with long Covid-19
Even when it may seem that Covid-19 is coming to an end in Europe, its consequences will need to be dealt with for months (and potentially years) to come. Employers should be mindful of the impact of long Covid-19 – when Covid-19 symptoms last longer than three months and/or tests continue to be positive – on employees. As EU-OSHA recognises in its recent report, long Covid-19 is a challenge for employers. Employees will need a longer time to return to the workplace/work and when they do, their capacities can still be limited. EU-OSHA’s suggests that employers perform occupational health assessments of employees’ situations, by considering certain factors, including functional limitations, likely trajectory of recovery, flexibility and adjustments that can be made to the job and working hours, providing mental health support etc. For example, in Germany employers are obliged – irrespective of Covid-19 – to offer employees who have been unable to work for at least six weeks within one year due to illness a so-called integration management. Its aim is to discuss the possibilities of overcoming the incapacity for work and to prevent renewed incapacity for work.
In addition, employers should continue to perform general workplace risk assessments in order to identify any changes in infectivity or in knowledge about infection risk at the workplace, as well as risk assessments for workers with underlying conditions such as pregnancy (see more on this blog post).
Interestingly, in the UK, a recent case in the Scottish Employment Tribunal held in a preliminary hearing that an employee with long Covid-19 symptoms was disabled for the purposes of the UK’s discrimination legislation. While this decision is not binding, it is likely to mean an increase in claims from employees with long Covid-19 symptoms. Therefore, not only should employers be mindful of employees with Covid-19, but they should also consider how best to support those employees with longer-term symptoms. In countries like Germany and France, the consequences of long Covid-19 are not (yet) explicitly mentioned in the list of diseases relevant for determining the degree of disability/long term condition.