As summer draws to a close, employers are looking forward to a smooth return of staff to the workplace for at least part of the working week. In readiness for this, the Government has updated its NHS Test and Trace in the Workplace guidance to exempt certain groups from the requirement to self-isolate in certain circumstances. Our briefing explains the changes and what they mean for employers.
What do workers need to tell their employers about self-isolation?
Workers who are told to self-isolate by NHS Test and Trace are legally obliged to notify their employer of that fact before they are due to attend work. A failure by the worker to do so means they could face a £50 fine. In turn, it is an offence for employers to require or allow workers to attend the workplace if they know that a worker has been told by NHS Test and Trace to self-isolate. A failure to do so may result in a fine for the employer starting at £1,000.
However, the new NHS Test and Trace in the Workplace guidance provides that workers are not legally obliged to tell their employers that:
- they have been told by NHS Test and Trace that they are a contact of a positive case of COVID-19 where they are exempt from self-isolation (see below for details of who is exempt); or
- they have been “pinged” by the NHS COVID-19 app and advised (but not required) to self-isolate.
Workers falling into either of these groups are not legally obliged to self-isolate and may attend the workplace. However, the guidance says employers are “strongly encouraged” to support the workers who are pinged by the NHS COVID-19 app to self-isolate.
Who is exempt from self-isolation and when?
The new guidance states that from 16 August 2021 certain groups of people will not be required to self-isolate where they have been in contact with a positive case of COVID-19. This covers situations where a person has been told by either NHS Test and Trace or the NHS COVID-19 app that they are a contact of a positive case.
The following groups are exempt from self-isolation in these circumstances:
- those who are fully vaccinated against COVID-19 (i.e. at least 14 days have passed since the individual received all of the recommended doses of the vaccine);
- those aged below the age of 18 years and six months;
- those who have taken part or are currently part of an approved COVID-19 vaccine trial; or
- those who are unable to be vaccinated for medical reasons.
Although exempt from self-isolation, anyone in these groups will be advised (but not required) to take a PCR test. If they choose to do so, they will not be required to self-isolate while they wait for the results. They will also be advised to take the following precautions in the ten days after their contact with the positive case:
- limiting close contact with people outside their household, especially in enclosed spaces;
- wearing a face covering in enclosed spaces and where they are unable to maintain social distancing;
- limiting contact with anyone who is clinically extremely vulnerable; and
- taking part in regular lateral flow testing.
Are there any circumstances in which someone in an exempt group would have to self-isolate?
It is important to remember that the exemption from self-isolation does not apply in all circumstances. Anyone who falls into the exempt groups will still be required to self-isolate if they:
- test positive for COVID-19; or
- show any symptoms of COVID-19 (in which case they should take a PCR test as soon as possible).
The self-isolation period is ten days from the day after the day of the positive test (if the worker had no symptoms) or ten days after the symptoms began. If the worker is unable to work from home during the self-isolation period, then the absence should be treated as sick leave and paid accordingly.
What do these changes mean for employers?
Given that approximately 76% of over 16s are now fully vaccinated, the relaxation of the self-isolation rules should go some way to limiting disruption as workers return to the workplace.
Regardless of the strict legal position, employers may wish to introduce an internal rule asking staff in exempt groups to tell them if they have been notified by NHS Test and Trace that they are a contact of a positive case of COVID-19. This information will help an employer discharge its duty to assess health and safety risks and ensure the health, safety and welfare of staff and third parties so far as reasonably possible.
For example, the employer may wish to adopt some, or all, of the precautionary measures recommended in the guidance. In practice, this could mean ensuring that the worker in question is able to socially distance from others within the workplace or allowing them to work from home for ten days. It could also mean that the worker is asked to reduce or cease contact with any clinically extremely vulnerable workers in the workplace for the same period of time.
Similarly, an employer may also ask staff to tell them if they have been pinged by the NHS COVID-19 app. In appropriate cases, the employer may be able to support the worker to work from home, but where that is not possible this information will help the employer assess risk and take additional safety measures deemed necessary (such as those discussed above).
BDBF is currently advising many employers and employees on the challenges presented by the coronavirus pandemic, including preparing for the return to the workplace. If you or your business needs advice on any coronavirus-related matter please contact Amanda Steadman (firstname.lastname@example.org) or your usual BDBF contact.