As part of the Welsh Government’s response to the Delta and Omicron variants of COVID-19, new regulations came into force on 20 December 2021.
The regulations insert a new Part 4B into the Health Protection (Coronavirus Restrictions) (No 5) (Wales) Regulations 2020 (Coronavirus Regulations) to place a legal duty on employees to work from home where reasonably practicable to do so.
They also add a new regulation 42A to the Coronavirus Regulations, which provides that it is an offence for an employee to contravene the requirement to work from home.
In addition, the regulations amend regulation 16 of the Coronavirus Regulations to provide that the reasonable measures that an employer may take to mitigate the risk of exposure to COVID-19 include allowing or requiring employees to work from home.
This means that a person could be fined £60 if they go to work when they could work from home. Employers could be fined up to £10,000 if they repeatedly fail to allow people to work from home. The legislation appears to apply to anyone living in Wales even if they work in England. The legislation also applies to volunteers.
It remains to be seen how the courts will define ‘reasonably practicable’. For example, if an employee could work from home if they had the right computer equipment but the employer does not have this at present, is it still reasonably practicable for the employee to work from home even though perhaps the employer is not in a financial position to buy the equipment?
Until we have further clarity on the requirements, we would advise employers to remain cautious.
28 Day Self-Certification
For Statutory Sick Pay (SSP), where employees go off sick on or after 10 December 2021, employers can only ask employees for proof of sickness (such as a fit note) after 28 days of sickness (including non-working days). Proof of sickness cannot be requested earlier than 28 calendar days absence.
In effect this means that employees can be absent from work and claim SSP without any medical evidence from a GP for up to 28 days. The change has been brought in to reduce workloads for GPs so that they can assist with the vaccination rollout. The regulation at present indicates that this change will continue until 26 January 2022.