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Legal insights & industry updates

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COVID 19 update: New variant Omicron forces the return of more restrictions

Over the past two weeks, the new variant Omicron has very quickly started to take hold and case numbers are now rising very rapidly. Last week England officially moved to its ‘Plan B’ and reintroduced the mandatory requirement of facemasks in certain settings, among a host of other measures. Our blog on this can be read here.

On Tuesday 14th December, the First Minister made a statement to the Scottish Parliament announcing the Scottish Government’s plans and next steps in light of the new variant and the threat it poses. Additional measures that are now so familiar were re-emphasised – consider limiting household contacts, seek to have indoor spaces well ventilated and adhere to stricter social distancing.

However, the Scottish Government has amended the existing Coronavirus regulations to make clearer the measures it requires businesses and employers to take. These amended regulations will come into force Friday 17 December 2021.

First, the regulations have been amended to legally require those running businesses or providing services to take measures which are reasonably practicable to minimise the incidence and spread of coronavirus on its premises. The regulations include measures which limit close face-to-face interaction, such as making adjustments to the premises and putting in place protective measures such as signage, screens and other mitigations. Other mitigations could include re-introducing room capacity limits, two-metre social distancing and one-way systems to avoid crowding.

The second item included in the regulations is a continued duty for employers to have regard to the Scottish Government guidance about measures to minimise risk of exposure to coronavirus relating to its premises, business or service. In certain sectors, for example for office workers, this will include the guidance for employees to work from home where reasonably practical to do so. The latest guidance is available here:

This means we now have a firmer position in the regulations than “advice” or “guidance”.  There is a legal duty to follow the guidance.  In general terms it ought to be reasonably practical to do so where working from home was previously established.  There may be reasons why not for some, but employers will need to take care to follow these new requirements.  

It is important for employers to be aware of these most recent changes and to take action as is necessary to remain compliant with the coronavirus regulations. Compliance with government guidance and health protection regulations is not the full extent of an employer's responsibilities; the Regulations bolster existing health and safety laws (under which both companies and their officers can be liable for breaches), will be relevant to the employer fulfilling its duty of care towards employees and likely also be relevant to fulfilling the terms and conditions of any insurance policy. Any employer requiring employees to come to work must take all reasonable steps to protect them against foreseeable risks to their health arising from coronavirus. This relates not only to physical health but to mental health (and includes getting to and from work safely). A full risk assessment and implementation of all reasonable safety measures will be required. What is reasonable will depend on the specific circumstances and involve considering a wide range of factors such as the nature of the work environment, the severity of the risk of harm, the ease or difficulty of taking particular steps which reduce that risk and the characteristics of the particular employee.

In the first minister's Covid update to Holyrood on Tuesday, she set out a range of measures the Scottish government wanted to take to slow down the transmission of the Omicron variant. In some cases, she said changes would be made to the law to make these things enforceable. In other cases, she offered guidance to the public and implored them to take precautions. So, what's guidance and what is law?