The NHS test and trace service is an important part of the Government’s strategy to reopen the economy safely and to minimise the risk of a second spike in coronavirus (COVID-19) cases. Employers are being asked to “play their part” in the service by encouraging workers to self-isolate, and to support them while they are in isolation.
The challenges that the test and trace service presents are likely to be particularly acute where an employee, who has had contact with co-workers, develops symptoms and those co-workers are then advised to self-isolate. This is one of the reasons why employers need to think carefully about resilience in their plans for returning to the workplace.
The Department of Health and Social Care (DHSC) has published employer guidance on the scheme, that emphasises the importance of following the guidance on working safely during coronavirus as a way of reducing the risk of co-workers having to self-isolate. For example, it may be possible to allocate employees to teams that do not have contact with each other, either because the teams are physically separated within a workplace, or attend the workplace at different times. Making sure that social distancing and hygiene requirements are strictly observed is another recommendation. Taking such steps should minimise the risk of large numbers of employees being required to self-isolate at one time. From the outset, employers should plan how to fill critical roles if employees performing those roles are advised to self-isolate.
Employers should make it clear to employees that if they are contacted by the test and trace service, and asked to self-isolate, they are expected to comply with that request. The employer should stress that it takes the duty to self-isolate seriously, views it as an important way of protecting employees’ health and safety, and will take appropriate action if it becomes aware that an employee has attended work when they have been advised to self-isolate. This could include disciplinary action in appropriate cases. Employers may also want to make it explicit that staff will not be penalised for self-isolating, although it is important to be clear about whether or not an employee will receive their normal pay while they are not able to attend work (see below).
Employers should put procedures in place as soon as possible for employees to report requests to self-isolate, and in a way that ensures those with responsibility for managing an organisation’s response to coronavirus will be notified. The same process should apply where an employee has to self-isolate because they have developed symptoms of coronavirus and are awaiting test results. Given that this will involve processing special categories of data, employers should handle the data with particular care and ensure that the data is necessary and relevant for the purpose of protecting health and safety, is held securely and is not used for any other purpose.
Once an employee has notified their employer that they are self-isolating, the employer should provide relevant support for the employee, including keeping in touch with them during their absence. A notification of self-isolation will also give the employer early warning that other employees may be asked to self-isolate if the employee subsequently develops symptoms, or is found to have coronavirus where the employee is self-isolating because they have already developed symptoms. There may be other steps that employers can take in relation to employees who may be required to self-isolate, such as minimising their contact with other staff for a period to reduce the risk of those staff, in turn, either being exposed to coronavirus, or being asked to self-isolate.
The employer may also want to advise staff that because a colleague has been asked to self-isolate, it is possible that they have been exposed to a case of coronavirus. This will allow those employees to be alert for symptoms and take other appropriate precautions, such as:
- social distancing;
- avoiding contact with friends or family who are particularly vulnerable;
- strictly observing hygiene recommendations; and
- preparing for a period of self-isolation should that prove necessary.
Normally, it will not be necessary to identify the individual who has been asked to self-isolate when notifying other employees.
The DHSC guidance makes it clear that an employee who has been advised to self-isolate should be permitted to work from home if this is possible and they are well enough to do so. An employee is entitled to their normal pay in those circumstances. If an employee’s role cannot be performed from home, the guidance suggests that an employer should offer them work that can be done from home, if this is possible. Given that an employer will not usually have much, if any, notice that an employee is going to be absent, employers may want to think in advance about whether or not there are certain roles or tasks that can be allocated to employees who are self-isolating.
If an employee cannot work from home, they will be entitled to statutory sick pay (SSP) and the test and trace service will provide a notification that can be used as evidence that they have been instructed to self-isolate. Employers may need to amend sick pay policies to reflect this, and inform managers that the normal rules on what medical evidence is needed to certify an absence have been modified.
The DHSC guidance for employers also indicates that employees should be given the option of using annual leave, instead of sick leave, if an employer will pay SSP only while they are self-isolating. An employer could ask an employee to indicate whether they want to take holiday, assuming that they have sufficient leave available, or SSP, when they initially notify the employer that they will be self-isolating. In that case, employers should waive their normal holiday notice requirements and make this temporary flexibility clear to employees and managers.
However, an employer may want to consider whether or not to extend company sick pay to employees who are self-isolating if they cannot work from home, even if they are not in fact unwell. An employee is more likely to comply with a request to self-isolate if they are not going to suffer a pay reduction for doing so. Although the employer will incur the expense of providing sick pay, this may ultimately be less costly for the business than the disruption caused if an employee continues to attend work despite being asked to self-isolate and then infects other staff. As the DHSC guidance points out, it is also less costly in the long run for the business than re-entering another period of lockdown because of a spike in overall cases. It is also a way of emphasising the employer’s commitment to ensuring the health and safety of employees as far as possible. To maintain flexibility, it would be sensible to offer sick pay on a discretionary, rather than a contractual basis.
An employee could be asked to self-isolate on multiple occasions. An employer’s response is likely to depend on whether or not the contact that has led to the request has occurred within or outside the workplace. If the contact has occurred within the workplace, employers should reassess working conditions, to see whether more social distancing can be introduced, or additional protective equipment provided to reduce contact between workers. Employers should also regularly remind employees about hygiene measures and workplace social distancing rules and review procedures to make sure those rules are being properly enforced. Similarly, if an employer finds that employees are repeatedly at risk of being exposed to coronavirus on their commute to work, which may become apparent if a COVID-19 app is rolled out, it may want to consider whether or not there are further steps it could take to help minimise those risks.
If the contact has repeatedly occurred outside the workplace or commute, employers could remind the employee of the importance of social distancing and the impact that repeated absences have on the business. It seems unlikely that an employer would want to take action against an employee as a result of absences in this situation, not least because that might discourage employees from complying with the test and trace service. That is unlikely to be in the employer’s long term interests. An employer may decide to withdraw enhanced sick pay (if it is offered) from an employee who has had multiple absences, but would again need to consider whether this would be counter-productive in the long run if, as a result, the employee simply continued to attend work instead of self-isolating.
Leaving aside the test and trace service, many employers may be considering whether or not they should require employees to be tested for coronavirus before they return to the workplace, and periodically thereafter. This would be one way of trying to protect the health and safety of all employees. However, before requiring employees to be tested, employers should consider all of its implications, including their obligations under the GDPR, particularly in light of the fact that they will be processing special categories of data.
Ultimately, there is very little an employer can do to prevent an employee being asked to self-isolate because of contact outside the workplace. However, there are steps that an employer can, and should be taking, to minimise the risk of workers being asked to self-isolate because of contact with each other, or to limit the degree of disruption where working conditions mean that such contact cannot realistically be prevented.
Author: Jo Broadbent