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Education briefing - The Living With COVID Plan - What does it mean for Further Education and Sixth Form Colleges and Academies?

  • United Kingdom
  • Education - Briefings

08-03-2022

On 21 February 2022, the Prime Minister announced the end of the government’s coronavirus (COVID-19) restrictions in England and a move towards personal responsibility.  The key changes from an institution’s perspective were as follows:

  • the removal of the guidance for staff and students in most education and childcare settings to undertake twice weekly asymptomatic testing
  • the removal of the legal requirement to self-isolate following symptoms or a positive test - though the guidance is that people should stay at home and avoid contact with other people for at least five full days after the day their symptoms started (or the day their test was taken if they did not have symptoms) and continue to follow the guidance until they have received two negative test results on consecutive days no earlier than the 6th and 7th day or (in the absence of two negative tests) until the end of 10 full days after the day they commenced staying at home
  • fully vaccinated close contacts are no longer being asked to test daily for seven days (though if an individual lives with, or has stayed overnight in the household of, someone who has COVID-19, they are advised to work from home if they are able to do so for 10 full days after the day the person’s symptoms started (or the day their test was taken if they did not have symptoms);
  • the removal of the legal requirement for close contacts who are not fully vaccinated to self-isolate; and
  • the end to routine contact tracing.

DFE guidance

The DfE’s specific guidance for colleges can be accessed here and for that schools and academies here.

On testing the guidance confirms that staff and students in mainstream FE providers and staff and pupils in mainstream secondary schools will not be expected to continue taking part in regular asymptomatic testing and should follow asymptomatic testing advice for the general population from the NHS i.e. they should only get rapid tests if:

  • they're eligible for new COVID-19 treatments
  • they visit someone who is at higher risk of getting seriously ill from COVID-19
  • they tested positive for COVID-19 and want to check if they're still infectious after five days
  • they work, volunteer, or visit somewhere that's high risk.

Its guidance also states that in the event of an outbreak, an FE provider or school may also be advised by their local health team or director of public health to undertake testing for staff and students of secondary age and above for a period of time.

On symptoms it states that students/pupils, staff and other adults should follow guidance on “People with COVID-19 and their contacts” if they have COVID-19 symptoms.  This separate guidance says someone with COVID should stay at home and avoid contact with other people.  They should do this for up to 10 full days after the day they commenced staying at home but can leave home earlier (and attend work) with a negative lateral flow test on two consecutive days no earlier than the 6th and 7th day.  Similarly children and young people with COVID should not attend their education setting while they are infectious, i.e. for 10 full days but they can attend earlier if both the tests results are negative (same timeframe) as long as they feel well enough to do so and do not have a temperature.

On excluding students with symptoms the guidance states “in most cases, parents and carers will agree that a student/pupil with the key symptoms of COVID-19 should not attend the setting, where they have a confirmed or suspected case of COVID-19, you can take the decision to refuse the student/pupil if, in your reasonable judgement, it is necessary to protect other students/pupils and staff from possible infection with COVID-19”.

Specific guidance for institutions on exams has been issued and can be accessed here.

Specific guidance for parents can be accessed here.

On considerations around equality legislation/clinically extremely vulnerable (“CEV”) students/pupils and staff, the guidance for those formerly considered to be CEV states that they should continue to follow the same guidance as the general public on staying safe and preventing the spread of COVID-19.  There is then a smaller number of people whose immune system means they are at higher risk of serious illness from COVID, despite vaccination – they are advised to work from home if this feels right for them – if they cannot work from home, to speak to their employer about what arrangements they can make to reduce the risk. They are also advised to continue to follow any condition-specific advice they may have been given by their specialist and to reduce the time they spend in enclosed crowded spaces.

Health and safety

In “Living with Covid”, the Government states that, from 1 April 2022, it will remove the health and safety requirement for every employer to explicitly consider COVID-19 in their risk assessments: “The intention is to empower businesses to take responsibility for implementing mitigations that are appropriate for their circumstances.”  Also from the 1 April, it will replace the existing set of ‘Working Safely’ guidance with new public health guidance:  “Employers should continue 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.”

Notwithstanding the lifting of the restrictions colleges and academies will still need to maintain a risk assessment which they regularly review and update. More information for colleges can be found here and for academies here.

What does this mean for institutions?  They will continue to be subject to H&S legal duties, including risk assessments and appropriate control measures, to ensure so far as is reasonably practicable the health, safety and welfare at work of their employees, students/pupils and anyone else who may be affected by the institution’s activities.  Employees also have legal responsibilities: to take reasonable care for their own and others’ health and safety and to cooperate with their employer to help them meet their duties.  The announcements mark a shift of responsibility onto colleges and academies, so that COVID becomes a day-to-day risk which has to be managed at individual workplaces by colleges according to above H&S principles. 

It will require colleges and academies to develop and implement their own policies about what happens when a member of staff or a student/pupil: develops COVID-like symptoms; is clinically vulnerable etc, as well as their approach to existing COVID-secure measures (face coverings, social distancing, hygiene, ventilation, testing protocols, canteens, third party meetings, travel etc).  While there is an intention to treat COVID the same as another infectious disease, it seems unlikely that this will happen overnight and, for workplaces, it will be a more gradual transition towards that point (all being well).  Much will turn on the new 1 April guidance.  Note that its publication may leave little time for colleges and academies to respond, suggesting that they may keep existing restrictions in the workplace initially, out of caution and to provide time for employee/student/pupil engagement and for policies to be implemented.

Given the Government’s recognition that new variants may emerge which change their approach to COVID, colleges and academies should consider retaining flexibility in their H&S policies should they need to reverse or amend current changes.

Pay and sick pay

On 24 March 2022, SSP regulations will be amended to remove COVID-19 provisions including that SSP will no longer be payable from day 1 if people are unable to work because they are sick or self-isolating due to COVID.  From 17 March the SSP rebate scheme will also close.  On that basis, from 25‌‌‌ ‌March, pre-pandemic SSP rules will return, with colleges/academies paying SSP from the fourth qualifying day their employee is off work regardless of the reason for their sickness absence.

If an employee is symptomatic with Covid-19, any contractual sick pay will apply as normal.  If an employee is COVID positive but not sick, contractual sick pay may not apply and the above SSP change means it will not apply either.  It should be noted that in the absence of testing from 1 April, employees will likely not know whether they are COVID positive at all, whether symptomatic or asymptomatic.  Colleges and academies will need to consider their response – will they encourage regular testing for employees and will they pay for asymptomatic absence?  It is not clear from the latest Government information whether guidance to stay at home if COVID-positive will continue beyond 1 April 2022 but the Government has indicated that from April it will update guidance setting out the ongoing steps that people with COVID-19 should take to be careful and considerate of others, similar to advice on other infectious diseases.

Colleges and academies should note that employees who are not sick but have tested positive and are advised not to attend the workplace but who are unable to work from home may be entitled to full pay because they are ready, willing and able to work but they are prevented from working (although this remains untested).  More generally, if a change of approach to paying contractual sick pay for COVID absence is proposed by a college or academy, it will need to check whether any express or implied obligations, including any potentially binding terms were created since the start of the pandemic.

There is clearly a lot for colleges and academies to consider as they manage the transition away from centrally imposed COVID-19 restrictions.