SELF ISOLATION FAQs
The final restrictions were released by the Government in England on 19 July 2021 but at the same time cases of Coronavirus positive test results were increasing rapidly. It is a legal requirement for individuals to self-isolate after testing positive for Covid-19 or if they are notified, they must self-isolate by NHS Test and Trace. However, the Government is removing the requirement to self-isolate for those who are fully vaccinated, the changes are expected to come into effect on 16 August 2021 in England. A further exemption has been introduced for those who are critical workers and those involved in targeted testing programmes. All these different rules are causing a lot of confusion about who is now required to self-isolate.
The media is full of reports of employers who are struggling to operate as their staff are self-isolating because they have been pinged by the NHS Covid-19 app with many being forced to temporarily close their business. Concern has also been raised over potential abuse by those looking to stay away from work and many are reported to have uninstalled the app to avoid been pinged.
It is a criminal offence if an employer knowingly allows a worker to attend the workplace when they should be self-isolating. Employers also have statutory health and safety obligations and a legal duty to take reasonable care to provide a safe place of work. Those who are identified as close contacts of positive cases of COVID-19 are reportedly five times more likely to be infected. Employers should take appropriate action to protect their workforce, especially more vulnerable members of staff, by ensuring those who are likely to transmit COVID-19 are kept away from the workplace. In some cases, particularly where employees can work from home, this may mean requiring those who are not legally required to self-isolate to remain away from the workplace.
Is There A Legal Requirement To Self-isolate?
Individuals are obliged by law to self-isolate if they or someone they live with has COVID symptoms or tests positive, they have returned from a “red list” country, or they have been contacted by NHS Test and Trace. Failure to do so, or an employer insisting an employee comes to work in these circumstances, can result in fines starting at £1,000 for the first offence and increasing to £10,000 for the fourth and subsequent offences.
Workers With COVID-19 Symptoms
Anyone who exhibits the three “most important symptoms” of COVID-19 (recent onset of a new continuous cough, a high temperature, or loss of, or change in, normal sense of taste or smell) is advised to self-isolate immediately and arrange to have a polymerase chain reaction (PCR) test. However, there is no strict legal requirement to self-isolate with these symptoms unless and until the individual obtains a positive PCR test result or a positive test result from an assisted lateral flow device (LFD) test. An assisted LFD test is where the person takes the test themselves under the supervision of a trained operator, and this operator processes the test, reads and reports the result.
Employers are likely to want workers to remain away from the workplace if they have symptoms of COVID-19 and are awaiting test results. This should be clearly communicated to the workforce. In most cases, the employer’s sickness absence procedure will apply in these circumstances.
Workers Who Test Positive For Covid-19
Anyone who conducts a home LFD test (in other words, not under the supervision of a trained operator) is advised to self-isolate immediately and to arrange to have a PCR test. There is no strict legal requirement to self-isolate unless or until the worker receives a positive PCR test result. Again, employers are unlikely to want a worker to attend the workplace in these circumstances, unless the worker then receives a negative PCR result. This should be communicated clearly to the workforce.
If the worker receives a positive PCR test result, they are legally required to self-isolate.
Workers Whose Household Member Has COVID-19 Symptoms Or Has Tested Positive For COVID-19
Where an individual exhibits symptoms of COVID-19, they and their household members are advised to self-isolate and the individual is advised to arrange a PCR test. There is no strict legal requirement for a household member to self-isolate until they are notified by NHS Test and Trace that they are a close contact of a positive case.
Many employers are likely to want workers whose household members are exhibiting COVID-19 symptoms to avoid attending the workplace. As with the scenarios above, this should be clearly communicated to staff.
NHS Test and Trace
It is a legal requirement to self-isolate if an individual is contacted by the NHS Test and Trace service and fines can be issued to those who do not follow the rules contained within the legislation.
Employees who are contacted by the NHS Test and Trace service are also legally required to notify their employer that they have been told to self-isolate.
Employers must not require or encourage someone who is legally required to self-isolate to attend the workplace; to do so exposes the business to a fine, as well as liability under the Health and Safety at Work Act 1974 for failing to provide a safe place of work.
NHS Covid-19 Smartphone App
Although the advice is to self-isolate when pinged by the app there is no legal requirement to self-isolate or notify the employer when pinged by the NHS Covid-19 smartphone app. A notice to self-isolate from the app is purely guidance and there is no legal penalty for anyone who chooses not to.
This means if an employee has been pinged by the app but doesn’t tell you and continues to come to work you could not be exposed to a fine. It also means you have some discretion when an employee has been pinged and asks you if they can come to work; in these circumstances if you are happy for them to come to work, they can do. You would need to consider your obligations and duties under the Health and Safety at Work Act, that could mean you allow them to come to the workplace on condition:
- You ensure they are not working in close contact with other employees,
- They wear a mask, and
- They take daily PCR tests for the 10-day isolation period and while they return negative tests, they can remain at work but if they return a positive result they must remain at home until they return a negative result.
You would also need to consider whether by allowing them to come to work you’re creating a risk for someone else as they could be infectious and could spread the virus around your workplace.
If you decide it’s safer for them to remain away from work, you will need to consider whether they can perform their role at home. If they can work from home and are well enough to work, there is no reason to not all this and they should be paid as usual for their work.
Alternatively, if your employee is not able to work from home or does not qualify for SSP, you could offer that the employee takes annual holiday, so that they can be paid in full for the period of isolation.
If no other options are available, you may have to approve a period unpaid leave.
Given that there is no legal requirement to inform the employer about an app alert (unlike the legal requirement to inform the employer when they test positive for COVID-19 or are identified as a close contact by NHS Test and Trace) a keep away from work with no pay rule may be difficult to implement.
The government has stressed that it is “crucial” for individuals to self-isolate and businesses should help employees to do so.
From 16 August 2021, anyone who has close contact with someone who has tested positive for Covid-19 will no longer have to self-isolate if they have had both vaccinations and have no symptoms. There is no legal requirement to take daily PCR tests, but individuals are encouraged to do so. If their test comes back positive, they will need to isolate.
In order to ensure you are complying with the new rules you will need to know which of your staff have been double vaccinated. The Information Commissioner’s Office recently published advice confirming that, to be processed lawfully, the collection of vaccination data must be necessary and relevant for a specific purpose. You will therefore need to determine what your aim is in collecting such data. Further, as employee medical information is “special category data”, collection of this data should be done with care, and in accordance with UK data privacy law.
On 19 July 2021, the government has updated the Test and Trace workplace guidance to provide further information on the self-isolation exemption for those notified as a contact of a positive Covid-19 case but who are providing critical services. Employers who believe that self-isolation of certain key employees would result in serious disruption to critical services are instructed to contact the relevant government department for their sector, applications will be agreed on a case-by-case basis. If eligible, approval will be confirmed in a letter to the employer setting out the names of the employees who are affected and any relevant measures that must be followed.
To participate in the scheme, in addition to working in a critical role, the employee must be fully vaccinated.
Targeted Testing Schemes
The government is in the process of rolling out new targeted testing (Daily Contact Testing) for certain workplaces. If covered by this scheme, workers who have been identified as close contacts of a positive case, by either NHS Test and Trace or the NHS COVID-19 app, will not need to self-isolate, but instead will be able to continue working if they test negative on a daily basis.
The government is currently planning to expand the Daily Contact Testing to a total of 2,000 sites of frontline services. This includes critical staff working in prisons, defence and waste collection as well as people working in energy, pharmaceuticals, telecoms, chemicals, communications, water, space, fish, veterinary medicine, HMRC, the food industry, transport workers, Border Force staff, frontline police and fire services.
This exemption will only apply to organisations who have been contacted by NHS Test and Trace and have set up a Daily Contact Testing site.
Does Statutory Sick Pay apply?
Where an employee is eligible for SSP and are self-isolating and off work for at least four days in a row (including usual non-working days), they will be entitled to SSP for every day they’re off work, if one or more of the following applies:
- They or someone they live with has symptoms of, or has tested positive for Covid-19
- They’ve been notified by the NHS or public health authorities that they have had close contact with someone who has tested positive for Covid-19
- Someone in their support bubble has symptoms of Covid-19, or has tested positive for Covid-19
- They’ve been advised by a medical professional to self-isolate before going into hospital for surgery for up to 14 days
Can SSP be reclaimed?
The Coronavirus Statutory Sick Pay Rebate Scheme (CSSPRS) will repay SSP employers have already paid to current or former employees. Up to two weeks’ SSP can be reclaimed for each employee off sick, if the below is true:
- The employee had Covid-19 or were self-isolating
- The employee was shielding before 1 April 2021 in England and Wales
- Your PAYE payroll scheme started on or before 28 February 2020
- You had fewer than 250 employees on 28 February 2020
You can make more than one claim per employee, but you cannot claim for more than two weeks in total.
You can claim SSP back under the CSSPRS using the online service.
Test and Trace Support Payment
Employees who are on a low income and are asked to self-isolate by NHS Test and Trace, may be able to get a £500 Test and Trace support payment. Your employee can find out more information about this at Gov.uk.
Does SSP Apply When An Employee Is Self-isolating Because They Travelled Abroad?/
No, employees are not entitled to Statutory Sick Pay if they’re in self-isolation after travelling abroad and they cannot work from home.
Can Employees Who Are Self-isolating Be Furloughed?
While short-term illness or self-isolation should not alone be a reason to furlough an employee, if you want to furlough employees for business reasons and they are off sick, you can do so and the employee would no longer receive sick pay, but would instead be classified as a furloughed employee. You can claim under the Coronavirus Job Retention Scheme (CJRS) and CSSPRS for the same employee, as long as this is for different time periods.
You can decide to furlough employees who are clinically extremely vulnerable or at the highest risk of severe illness from coronavirus. You do not need to be facing a wider reduction in demand or be closed to claim under the CJRS for these individuals.
Given that the maximum statutory sick payment is £96.35 per week and the maximum furlough payment can be £2,500 per month and be claimed under the CJRS, this can be of great benefit to you and your employees until the end of September, when the CJRS will terminate.
What If My Employee Becomes Sick While On Furlough?
Furloughed employees have the same rights to SSP as if they had been working as usual. If they would otherwise be eligible apart from them being furloughed, you should pay the employee SSP if they are sick due to Covid-19 or anything else. It’s up to you whether to move a sick employee onto SSP or to keep them on furlough, at their furloughed rate. If you choose to move a furloughed employee onto SSP, you cannot claim under the CJRS for that employee over that time period and unless you can claim under the CSSPRS, your business will need to fund this SSP payment.
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