The Health Protection (Coronavirus, Restrictions) (Self Isolation) (England) Amendment Regulations 2021 provide that in England, since 16.8.21, individuals informed by NHS Test and Trace that they are a close contact of someone who has tested positive will not need to self-isolate (or could end their current isolation period from or after 16.8.21) where they are either:
- Fully vaccinated (i.e. have received their final dose of an MHRA-approved vaccine in the UK vaccination programme at least 14 days prior to contact with a positive case).
- Below the age of 18 and six months.
- Have taken part in, or are currently taking part in, an approved Covid-19 vaccine trial.
- Not able to be vaccinated for medical reasons and can evidence this.
These exemptions also apply to individuals who are identified as a close contact via the NHS Covid App (albeit that notifications to self-isolate via the app have only ever been advisory, rather than a legal requirement). Individuals who are exempt will be advised to take a PCR test, unless they have received a positive PCR test result in the previous 90 days, although there is no statutory obligation to take a test. Furthermore, there is no requirement for them to self-isolate while they wait for the test result. If the PCR test result is positive, the individual will then be legally required to self-isolate. Individuals who are identified as close contacts are advised to consider the following precautions until 10 days after their most recent 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
- taking part in regular lateral flow testing
Although the onus is on the individual to decide whether or not to follow that advice, workers may be concerned about working alongside colleagues who have been notified of being in close contact, even if they are not legally required to self-isolate. Employers may need to consider whether to encourage fully-vaccinated employees (or other exempt employees) (without requiring them to disclose the reason for their exemption) to let them know if they have been contacted by NHS Test & Trace, and encourage them to follow any advice they have been given about taking precautions. Measures such as working from home (if that is possible), asking employees to confirm if they have taken the recommended PCR test, regular (twice weekly) lateral flow testing, or requiring the wearing of face coverings if they come into close contact with others, or those that are clinically extremely vulnerable, may be required to reduce the risk of coronavirus transmission in the workplace. In certain workplaces, such as in health and social care, employees may be asked to take additional precautions.
Employees and others who have been contacted by NHS Test and Trace to inform them that they have been in close contact with someone who has tested positive for Covid-19 have a legal duty to self-isolate for at least 10 days unless they are exempt.
If they have a legal duty to self-isolate, they must inform their employer of this as soon as possible before attending work unless they are working in the place where they are self-isolating (such as their home). Failure to do so, including falsely claiming they are not required to self-isolate, the employee could receive a £50 fine. They may also be subject to the employer’s usual disciplinary process.
Government guidance states that workers who are exempt from self-isolation do not need to inform their employer when they have been advised either by NHS Test and Trace or the NHS Covid App that they are a contact of a positive case.
Anyone who isn’t exempt will have to continue to self-isolate.
Similar exemptions from self-isolation for close contacts have been introduced in Northern Ireland with effect from 16.8.21: https://www.nidirect.gov.uk/articles/coronavirus-covid-19-self-isolating; in Wales with effect from 7.8.21: https://gov.wales/self-isolation and Scotland with effect from 9.8.21 https://www.gov.scot/publications/coronavirus-covid-19-test-and-protect (where testing for those exempt from self-isolation is mandatory).
As an employer, do I have to check my workers’ vaccination status to check whether an employee is exempt?
No, they must let you know if they are legally required to self-isolate.
The self-isolation regulations make it an offence for an employer to ‘knowingly’ allow self-isolating employees to attend a workplace outside their home, for which the employer could face a fine, starting from £1,000, but do not place a duty on an employer to check whether an employee is exempt from self-isolation. Government guidance makes clear that employers are not expected to check whether an employee is exempt from self-isolation.
Where employers are checking or recording vaccination status, they must comply with their data protection obligations around recording this special category health data. The ICO has released guidance on vaccination and Covid-19 status checks. It states that employers should have a clear and necessary reason for recording employees’ vaccination status, which cannot be achieved without collecting that data. Employers will need to be very clear in their employee privacy notices about what they are trying to achieve by checking staff vaccination status; a ‘just in case’ basis will not be sufficient. It is likely to be easier to justify collecting such information in certain workplaces, for example in a health or care setting where coronavirus presents a specific risk; otherwise it may be difficult for employers to demonstrate that this is “necessary”.
What about employees who receive a notification to self-isolate via the NHS test and trace app?
Individuals who receive a notification to self-isolate via the NHS test and trace app are not under a legal requirement to self-isolate, as the notification is advisory only, although public health advice is that individuals should isolate in this circumstance. While employers would not face criminal sanctions via a fixed penalty if they were to ask, require or encourage employees to attend work in this circumstance where the employer knows they have been advised to self-isolate via a notification from the app, they do have a legal obligation under health and safety legislation including the Health and Safety at Work Act 1974 to “do all they reasonably can to provide a safe place of work”. Requiring or permitting employees to attend work in this circumstance, even if the employer were to mitigate this by requiring, for example, the employee to undergo coronavirus testing and carrying out a risk assessment, is likely to be a breach of health and safety legislation, which could result in employee complaints/risk of damage to a business’s reputation, or be enforced by the Health and Safety Executive in the absence of a change to public health guidance in this circumstance.
Can employers ask employees who are exempt from self-isolation but identified as a close contact to take a Covid-19 test?
Individuals within the close contact self-isolation exemption are not legally required to take a Covid-19 test and are also not advised to take a PCR test if they have received a positive PCR test result in the previous 90 days. So requiring employees who are exempt from self-isolation and testing to undergo Covid-19 testing may be unwelcome unless employers already have a Covid-19 testing policy. Instructing an employee to stay away from work pending a negative Covid-19 test when they are not required by law to self-isolate and when they are “ready, willing and able” to work and so are entitled to be provided with work and to be paid, could lead to the risk of a tribunal claim for unlawful deductions from wages (regardless of the employee’s length of service), or, for example, a constructive unfair dismissal claim where the employee has at least 2 years’ service. Government guidance encourages those who are exempt from self-isolation (as close contacts of a positive Covid-19 case) to take part in regular lateral flow testing (tests can be ordered by the individual for free online) and/or take additional safety measures such as wearing face coverings, distancing and limiting contact with anyone who is clinically extremely vulnerable. Employers should support employees who choose to take these additional safety measures; albeit that employees who choose to isolate as a precaution and choose not to attend work when exempt from self-isolation would not be entitled to Statutory Sick Pay and would need to agree the absence with their employer (whether paid or unpaid).
Can employers refuse company sick pay to an unvaccinated employee who has been notified to self-isolate?
Whilst employers cannot withhold Statutory Sick Pay (SSP) where employees are entitled to this when self-isolating, employers may consider withholding additional company sick pay from unvaccinated employees who are required to self-isolate and pay SSP only. However a blanket policy, which does not exclude those who are unable to be vaccinated for medical reasons for example, will carry legal discrimination risks. Unvaccinated employees who assert that they are unvaccinated due to a protected characteristic e.g. pregnancy, age, disability, religion or belief, may also raise a complain of indirect discrimination in regards to such a policy, unless the policy could be objectively justified. Employers will also need to consult on a variation to contract, where this represents a change to existing contractual sick pay policies or employment contracts. It is also important to be mindful of individual circumstances to avoid grievances.
Providing enhanced company sick pay where employees are required to self-isolate, regardless of the employee’s individual circumstances, may also offer an financial incentive to employees to comply with the legal requirement to self-isolate and help protect the safety and wellbeing of others by reducing the risk of employees attending the workplace when they should be self-isolating due to financial considerations.