Landmark post-pandemic workplace health reforms? Don’t hold your breath

The government’s long-awaited response to its 2019 workplace health consultation Health is everyone’s business was finally published this week. And it is all a bit, well, underwhelming, as Nic Paton reports.

Landmark set of reforms or bit of a damp squib? The jury is, of course, still out on the government’s long-awaited response to its 2019 consultation Health is everyone’s business.

However, for something that has been so long anticipated by the profession, it is probably fair to say the lack of detail, lack of concrete proposals and, crucially, lack of any hard cash to back it up means we’re probably looking more at the latter rather than the former.

So, what has the document proposed and what do OH practitioners need to know about it?

The first thing to bear in mind is that the response document was published in tandem with a new green paper on health and disability, Shaping future support. This is consulting on a range of areas, including improving the support for, and expectations of, employers to help prevent people with a health condition or disability falling out of work.

So, in essence, there may yet be more reform or changes to come and the 2019 consultation and its response is not the final word. The consultation process on the health and disability green paper will run until October, and it can be accessed here.

Our main focus here however, the 2019 consultation response document Government response: Health is everyone’s business, is split into six main chapters. These look at how employers can better helped to navigate the work and health landscape; how support for sick and absent employees and return to work can be improved; the reform of statutory sick pay; improving access to occupational health support; other issues raised by the consultation; and the government’s proposed next steps. Let’s look at each in turn.

Navigating the health and work landscape

Here, the government made it clear that it wants employers and employees to have better interactions about work and health to support employee retention. “We want to mitigate any adverse effects of the pandemic (whether direct or indirect) on disabled people or people with long-term health conditions,” the document emphasised.

However, it was clear from the consultation that employers and employees found navigating the variety of sources of publicly-funded advice and information on work and health confusing.

“Government heard that providing easily-accessible information and advice is important, as some employers report lacking confidence and being afraid of ‘doing the wrong thing’. This is particularly true for SMEs [small and medium-sized enterprises],” the response document has stated.

“Government also heard that there is a lack of awareness and understanding of rights and responsibilities under the Equality Act among both employers and employees, in particular around providing reasonable adjustments,” it added.

To improve things the government is therefore proposing, first, to continue to look at how content and communication across government can become more joined up. Second, and more importantly, it has pledged to “develop a national information and advice service for employers on health, work and disability, with material designed to help manage common health and disability events in the workplace”. Design work on this will be carried out during 2021.

Improving return-to-work support

Positives for OH practitioners in this section include the recognition by government that good conversations between employers and employees can facilitate an employee remaining in (and returning to) work. Yet it also pointed out it is not always the case employees receive the support they need from employers. This is an area the government also recognised had been amplified by the pandemic.

As the document has stated: “There are reports that the large number of people working differently has led to some employees not receiving adjustments in new work settings, for example when working from home, and that some employers lack the knowledge needed to provide them in this new context.

“With emerging evidence from early on in lockdown suggesting a marked increase in the number of employees with worse symptoms of musculoskeletal pain, higher levels of fatigue, poor sleep, and higher levels of eye strain, the number of people who are entitled to – or would benefit from – work(place) adjustments could be increasing,” it added.

Within this, the importance of adjustments is reiterated. The document said: “Effective work(place) modifications and adjustments (for example, changes to the working environment, hours and tasks, as well as phased returns to work) can reduce the length of sickness absence and help employees remain in work.”

This, in turn, led to the question of the introduction of a possible legal right to request work or workplace modifications on health grounds.

The 2019 consultation responses broadly agreed this would be a good thing, although there were concerns about the possible impact of any new legal right on smaller businesses in particular and whether, in reality, any new right would undermine existing workplace protections, in particular the duty to make reasonable adjustments for disabled people.

In its response, the government has picked up on these concerns and therefore felt the best approach is, in essence, to do nothing. As the document has said: “On balance, government has decided not to proceed with the introduction of the proposed right to request work(place) modifications at this stage. However, there is a strong case to consider what more could be done to raise awareness and understanding among employers and employees of their existing rights and responsibilities, in relation to both the duty to make reasonable adjustments and work(place) adjustments more broadly.”

On top of this, the 2019 consultation asked whether statutory guidance should be strengthened to encourage employers to take appropriate steps to support a person on sickness absence to return to work. It also sought to establish whether this guidance should be principle-based or set out specific actions for employers to take.

“The majority of respondents agreed that statutory guidance should be strengthened, stating that clear guidelines would give employers more confidence to act and provide consistency in their approach,” the response document outlined.

To this end, the government has asked the Health and Safety Executive “to explore ways to strengthen guidance on how employers can best support disabled people and those with long-term health conditions to remain in work, and on managing related sickness absence”.

In the first instance, the focus here will be on strengthening existing non-statutory guidance before “exploring the introduction” of statutory guidance, it has added.

Reform of statutory sick pay

One of the more headline-grabbing elements of the 2019 consultation was the idea that statutory sick pay (SPP) should be reformed so that it is made more widely available and more flexible, for instance allowing some element of sick pay to be retained when an employee is going through a process of phased return.

However, in its response, and despite widespread expectations within the industry that the government had been up for a formal consultation on the future shape of SSP, the government has made it clear this is not something on the agenda at the current time, citing the challenges of the pandemic and post-pandemic landscape.

As the document has said, rather baldly: “The consultation posed several important questions on the future of SSP which require further consideration. Government maintains that SSP provides an important link between the employee and employer but that now is not the right time to introduce changes to the sick pay system.”

Helping employers to access quality OH support

This is probably the area where most OH practitioners were keenest to find out more on the government’s thinking, given that significant reform could change the shape and make-up of the OH landscape. Laudably, as perhaps the most detailed part of the response document, it also showed that the government has done considerable work and put considerable thought into this area.

The document has highlighted, for example, the role that OH has had during the pandemic, including in supporting return to work. “Research conducted by the Society of Occupational Medicine (SOM) during the early stages of the crisis showed over three quarters of NHS OH providers and more than half of in-house OH providers said their workloads had increased,” it explains.

The report also highlighted the well-documented issue around variation in access to OH services. “Large employers are five times more likely to offer OH than small employers… Over a third of employers who do not access OH services cite cost as the main barrier, but knowledge of actual costs amongst small employers is limited and some employers without access have a lack of understanding, or have not fully considered the benefits, of OH services. Some see OH services as relevant only to those who have to deal with long-term sickness absences or disabled employees or those with health conditions, and sometimes as a means for managing people out of organisations,” it said.

Perhaps unsurprisingly, the Covid-19 pandemic has also had a significant impact on the market, citing the same research from SOM in April 2020, which showed that three-quarters of practitioners were spending an increased amount of time providing remote consultations, via both telephone and video calls, and a decrease in face-to-face work.

It also cited Department for Work and Pensions research that indicated an additional 8% of businesses newly purchased OH during the pandemic specifically to help them deal with Covid-19-related OH issues.

“The pandemic has made the proposed strategy for reforming the commercial OH market more important than ever,” the response document has emphasised, with the government set to look at key mechanisms including a potential new OH subsidy, supporting the development of more innovative services, developing the OH research base, and workforce reform, among others.

A possible new OH subsidy model

In what is perhaps the most significant tangible announcement of the whole document, the government has proposed that it will “test a subsidy which would aim to gather evidence on whether targeted financial incentives improve access to OH and employment outcomes”.

As it added: “This test will be robustly evaluated and findings, alongside developments in OH reform policies, and affordability, will inform the case for potential fixed term roll-out in the future. Government will work with experts to ensure minimum qualification criteria are in place that OH providers should meet in order to be able to deliver subsidised services, and will assess provider suitability criteria as part of the subsidy test.”

On the issue of ensuring services that are available are of high quality, the government said it will be working with the Faculty of Occupational Medicine as part of its ongoing review of the SEQOHS standards and accreditation of services.

As the document explained: “Government has expressed its interest in the review exploring opportunities for SEQOHS to introduce stronger links with outcomes, and to increase engagement with employers and smaller providers.”

OH innovation and the evidence base

The response document has made it clear that creating more capacity in the OH market is not something that is going to happen overnight. “As key elements of this approach – such as training new OH doctors and nurses – will take time, it is important to ensure other complementary methods of boosting capacity are available so the sector can rapidly respond to increases in demand.

“Innovation – defined as investing in new or improved services, delivery methods or technologies – can be an effective solution which can also help drive increased employer demand, particularly from groups who are less likely to purchase OH (such as SMEs and self-employed people). Government is exploring proposals that aim to increase the pace of innovation and establish the long-term structures to drive the development of services that support job retention,” it added.

What this means in practice is the government committing “to working with the market and key stakeholder organisations to explore how it may be able to support innovative ideas that increase the purchasing of OH by SMEs and the self-employed.”

It added: “Government will gather this intelligence through targeted market engagement which will help inform policy proposals to support innovation in OH. We will continue to monitor emerging evidence from the COVID-19 emergency, to understand the extent to which the market has been driven to adopt new approaches in response to the pandemic, and how government can best support future efforts in the innovation space.”

Alongside this – and in one of the more concrete commitments to come out of the document – there is a pledge to establish “a collaborative partnership with the Economic and Social Research Council, the Medical Research Council, the Health and Safety Executive, the Society of Occupational Medicine and the independent Academic Forum for Health and Work to develop the proposal for a new Centre for Work and Health Research.”

Development work on this new centre is expected start during this year.

Reform of the OH workforce

Given the caveat earlier that workforce reform is not something that can happen overnight, but also that the government’s own research has indicated that 44% of OH providers report having roles (typically, OH nurses and OH doctors) that they are unable to fill, the document proposed three responses, if all of them somewhat nebulous:

• To address shortages within the OH workforce by “ensuring the right training and support helps build a sustainable workforce for the future”.
• “To work towards building a sufficient supply within the market for new or existing OH providers to service future demand.”
• “To reduce the public purse burden through an improved commercial market partnership.”

In more detail, and in the context of pressure points such as the need for an expansion of clinical roles, more multidisciplinary working and a greater leadership role for OH, the response document very much presented itself as taking a holding position.

As it said: “Government recognises the need to build a better picture of the OH workforce which supports effective strategic workforce planning. Steps are being taken to understand how this can be achieved through digital data sharing, through the initiation of a discovery project.”

It added: “Government is committed to supporting a sustainable OH workforce, recognising that immediate actions are required, alongside the development of a longer-term strategy, which acknowledges the cultural, behavioural and administrative changes required amongst organisations and stakeholders.

“Government recognises that this is a large programme of work and will initially focus on immediate actions around the provision of information and advice for OH professionals and those interested in an OH career, alongside exploring training improvements and support.”

Fit notes, health insurance and tax incentives

A further area the response document looked at was reform of the fit note, especially who is able issue them. The document emphasised that the government “wants to ensure the fit note can be delivered in a way that facilitates good work and health conversations supporting workplace adjustments or return-to-work conversations with employers.”

Changes therefore here will include:

• updating how fit notes are certified (to remove the current requirement for them to be signed in ink);
• creating a new interactive version of the fit note that will provide advice and support for suggested workplace adaptations or modifications, based on clinical conditions, to encourage work and health discussions between patients and employers;
• exploring the amendment of regulations to allow a wider range of eligible healthcare professionals to sign fit notes
• commissioning Health Education England to develop an e-learning training module (from this summer) to support eligible healthcare professionals with providing fit notes once they are permitted to do so;
• promoting the use of allied health professionals’ fitness for work reports as an alternative to the fit note;
• embedding electronic fit notes in hospital systems and encouraging hospital doctors to issue fit notes to patients in their care (from spring next year); and
• consulting employers to explore their views regarding using fit notes as medical evidence and consider how the government can address employers’ concerns in further fit note reforms.

When it came to health insurance, the document outlined that it intends to build on proposals from the industry body Group Risk Development (GriD) to develop a ‘consensus statement’ to improve employer awareness of the links between good work and good health and promote the use of insurance-based services.

As it said: “Government will support the creation of the consensus statement for employers and consider the outputs of the working group. The government will also continue to work with the industry to improve awareness among employers and self-employed people of the benefits protection policies can provide.”

On the thorny issue of tax breaks for firms that invest in workplace health interventions, it is clear that, with so many other competing financial pressures, this is not something on the government’s radar.

As the document said: “The government does not believe that making the tax treatment of health and wellbeing initiatives more generous is the most effective way to incentivise employers to take positive action for their employees’ health and increase the provision of OH support.”

How the profession has responded

What, then, has been the response across the profession and OH and health insurance industry?

SOM, the Society of Occupational Medicine, said it welcomed the report’s focus on quality OH services and on the need to secure improved employee health and productivity. “We are pleased that the response recognises the lack of access to OH services, to only around half of all employees,” it added.

But SOM president Dr Jayne Moore indicated the focus would probably now shift to the likely spending battles we will see this autumn. “SOM welcomes investment in occupational health as it facilitates healthy and safe workplaces. Occupational health doctors, nurses and health professionals are vital to ensuring there is the capacity for scale up of occupational health services that we all want,” she said.

“We look forward to the Government’s Comprehensive Spending Review backing up this response with investment in the occupational health workforce.”

Katharine Moxham, spokesperson for the group risk sector body GRiD, said: “We look forward to working with government to take forward the consensus statement project – which aims to enhance employer guidance, improve employers’ awareness of the link between good work and good health, and promote the use of expert-led support services – and to continuing discussions to help government’s understanding of the different routes through which employers may prefer to access OH services.”

Simon Hodgson, head of public policy at Unum, expressed disappointment at the dodging of the opportunity to reform SSP. “In the midst of a continuing global health crisis the decision to delay sick pay reform will come as a blow to the charities, trade unions, and experts who have been campaigning for reform of sick pay which is so desperately needed – and which they had been promised,” he said.

“Statutory Sick Pay is a 40-year-old system, and the pandemic has tragically highlighted how its inadequate protection can leave vulnerable employees struggling to cope. And unlike other countries like Germany or Australia, the system doesn’t do anything to help employers get their staff back to work, leaving them ill-informed and underprepared to deal with employee sickness.

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“Government must bring forward the reforms it has been promising as soon as possible and launch an independent review to help bring the system up to modern standards,” he added.

The full response document can be found at: Government response: Health is everyone’s business