What do changes in COVID-19 requirements mean for employers in the Travel Industry?
Thankfully, after a long hard journey through the pandemic, the travel industry is for the most part recovering with bookings well into 2023/24. As travel restrictions have eased enormously, pent-up demand for foreign travel and holidays continues to increase.
However, the travel industry in general and some sectors in particular face a difficult job when it comes to navigating the various pieces of guidance published by England, Scotland and Wales following the move away from mandatory COVID-19 legislation to advisory documents. The challenge for travel sector employers is how to continue managing cases of COVID-19 amongst staff in the absence of free testing, mandatory isolation requirements, and COVID-19 related SSP concessions, most of which had been in place for almost two years. Alongside this, travel industry employers have to balance their general health and safety duties both to their own staff and to their customers, who are often in close physical proximity – not to mention the need to mitigate against reputational risk.
Changes to SSP relating to COVID-19
One of the major factors affecting how employers respond to positive cases of COVID-19 is the removal of COVID-19 related Statutory Sick Pay provisions, which provided a cushion both for individuals and their employers. Since 25 March 2022, there is no longer an entitlement to SSP from day 1 of incapacity for work where absence is related to COVID-19, and the "waiting period" for SSP has reverted to 3 days. The "day 1" entitlement was introduced temporarily to ensure that the SSP rules did not discourage staff from isolating when they had COVID-19, but ended at midnight on 24 March 2022. Separate regulations ensured a transitional provision where the period of incapacity began on or before 24 March 2022 – the day 1 rule continues to apply in such cases, but it is unlikely that such staff will still be off work now unless they are suffering from long COVID.
At the same time, since 25 March 2022, the statutory provisions which "deemed" staff to be "incapable of work" for the purposes of SSP due to having COVID-19 or following self-isolation rules, whether or not they had symptoms, were also revoked. This means that a person isolating under legislation or guidance, but without symptoms themselves, are no longer entitled to SSP as they are deemed to be able to work.
These provisions apply to England, Scotland and Wales, despite the devolved nations' different approaches and timings on ending self-isolation rules, leading to a disparity between sick pay and the rules on self-isolation. In England, Scotland and Wales, guidance still suggests that positive COVID-19 cases should self-isolate even if asymptomatic, and the fact that they will no longer qualify for SSP leaves both staff and employers who continue to test employees in a difficult position, as seen over the Easter holidays with staff shortages at some airports partly due to COVID-19 absences. Many sectors in the travel industry may, of course, provide more generous company sick pay provisions than SSP, and have different requirements (for example not being dependent on "waiting days"), but they usually rely on the employee being absent through sickness, and depending on the risk to staff and customers, employers should consider whether pay should be adapted for positive COVID-19 cases where staff are asymptomatic.
Changes to COVID-19 legislation and guidance
In England the legal requirement to isolate for a minimum of 5 days was revoked on 24 February 2022, and replaced with Government Guidance. On 1 April 2022, the guidance to isolate was replaced with Guidance for People with Symptoms of a Respiratory Infection, including COVID-19 and Living safely with Respiratory Infections, including COVID-19.
In the guidance there is still the implication that those who test positive, even without symptoms, should stay away from the workplace, avoid contact with other people for 5 days, work from home where possible, and talk to their employer about options available if they are unable to work from home. Working from home may be possible for the office-based staff of airlines, cruise operators and travel businesses, but in other sectors of the travel industry, working from home is unlikely to be an option. Recent shortages of staff at ports and airports has been widely reported and may have a knock-on effect on reputation.
English Guidance also includes Guidance on Reducing the spread of respiratory infections, including COVID-19, in the workplace. This refers to looking out for symptoms, encouraging vaccination, increasing ventilation and extra cleaning. However, it also states that "Employers, in accordance with their legal obligations, may wish to consider how best to support and enable their workforce to follow this guidance as far as possible", and "Employers may wish to consider the needs of employees at greater risk from COVID-19, including those whose immune system means they are at higher risk of serious illness from COVID-19."
The onus is clearly on employers to take appropriate steps, but with a large amount of discretion in doing so. Again, the travel industry is particularly affected, where employers need to remember health and safety duties to other staff members and the general public, but where social distancing is usually not an option.
This will affect, in particular, those working on cruise ships, airlines, bus tours, and airport transfer services where the scope for social distancing is very limited and heavy reliance will need to be placed on ventilation and mask-wearing. It could also affect those working in ports and airports, depending on how closely they work with each other in confined indoor spaces, or those serving food in such settings. With close proximity carrying a potential risk to vulnerable staff or customers, these particular sectors may decide to continue regular asymptomatic testing to ensure safety standards and customer confidence in the industry. Regular testing could also prevent the costly knock-on effect of staff absences where COVID-19 has spread unchecked because it was not known that a member of staff was infectious. The British Chamber of Commerce has recently called on the Government to provide free or at-cost testing for businesses (with hospitality named as one of the industries particularly affected), which would assist those in the travel industry still seeking to recover financially from the last 2 years.
Other areas of the industry may decide that regular staff testing is not required, such as travel agencies advising customers in retail-type premises, those working in reasonably spacious hotels, or agencies with tour representatives "on the ground" but who are not likely to come into close contact with customers or colleagues for prolonged periods of time whilst working. Ventilation, mask wearing and regular handwashing could well be considered sufficient in these settings. Without regular testing, these sectors are likely to be in the same position as other employers, only knowing about positive cases when a member of staff or their family falls ill. Employers could still require "close contacts" of positive cases to test daily (as was previously the case before all restrictions were dropped in England) at the employer's cost, whilst allowing the staff member to work if they continue to test negative and not develop symptoms.
If employers impose requirements to stay away from work on those who test positive for COVID-19, but who are asymptomatic, it is likely that they will have to pay such staff in full if they are ready, willing and able to work (unless the contract provides for a reduction).
The costs of testing, paying staff on sick leave and potentially paying asymptomatic staff are all additional pressures on the travel industry at a time when many services have suffered from staff shortages.
The HSE has updated its COVID-19 workplace guidance here. While HSE no longer requires specific control measures, it is still a requirement to consult workers and their representatives on changes that might affect health and safety. There is no longer specific workplace COVID-19 guidance for different sectors.
Wales has produced Guidance for Businesses, employers and organisations following the end of isolation requirements and free workplace lateral flow testing. It suggests that in some cases it may be appropriate to exclude positive cases from the workplace, and has produced a checklist of all the various measures employers could take to reduce the risk of staff transmitting COVID-19. Like England, whilst no longer being a legal requirement, self-isolation guidance still recommends that those who test positive, even without symptoms, should stay away from the workplace, avoid contact with other people for 5 days, work from home where possible, and talk to their employer about options available if they are unable to work from home – almost no different to the position in England referred to above.
Employers in Wales are also no longer legally required to conduct a COVID-19 risk assessment, but guidance advises that business continue to do so if it works best for their circumstances. Many employers in the travel industry may consider this important where staff work in close quarters with each other and with customers. It may also put employees at ease, especially those returning to work after a significant period of time working from home or who have been ill after contracting COVID-19.
As of 1 May, the position/guidance in Scotland is now largely the same as England and Wales (with all of the nations providing exceptions for higher risk settings such as health and social care). With all other Government restrictions and support now largely at an end, employers in the travel industry will continue to grapple with these dilemmas for some time to come, and should ensure they devise clear and responsible policies for all staff to follow.
Vicky Schollar is a Senior Associate in the Employment team at Blake Morgan LLP.