Recent days have seen a flurry of COVID-19 related developments as the government seeks to react to the impact of millions of workers being ‘pinged’ by the COVID-19 App and informed they should self-isolate for up to 10 full days. This has led to significant workforce shortages across all sectors placing significant pressures on frontline and critical services.
At the same time, employers are having to grapple with the legal differences between a self-isolation notification received by an employee from NHS Test and Trace, and an alert from the COVID-19 NHS App, and make speedy decisions about how best to manage the ‘pingdemic’ situation to minimise the disruption to business. A notification from NHS Test & Trace imposes a legal obligation to self-isolate and also places obligations on employers, with potential financial sanctions for non-compliance. In contrast, a self-isolation alert from the NHS COVID-19 App is not legally binding and carries no sanctions for non-compliance.
In response, the government has been adopting a rather piecemeal strategy (applicable to England only). It has announced a new scheme permitting employers in certain critical sectors to apply for self-isolation exemptions* for specific fully vaccinated** named individuals, whilst also then introducing a new daily testing self-isolation exemption, also for critical sectors, regardless of the vaccination status of the employees. The daily testing exemption has been widened to further sectors in recent days and the government’s strategy in this respect still appears to be very fluid. Separate arrangements apply to frontline health and care workers.
These programmes also sit alongside a previously announced decision that fully vaccinated individuals will not have to self-isolate if notified that they are a close contact of a positive case from 16 August 2021.
Unsurprisingly these developments are leading to widespread confusion. For now, however, here are some of the key issues which employers need to consider:
- Managing employees who have received an alert to self-isolate from the NHS COVID-19 App:
- Will evidence of the notification be requested and, if so, in what form?
- What will be the business’ approach to an employee who has received an alert? Will the business require the employee to attend work regardless? If so, what will be the approach to refusal, including in relation to pay?
- Self-isolation exemptions:
- Are there potentially eligible employees for whom the business can apply for an exemption?
- Is the business eligible to utilise the daily testing exemptions?
- How will a daily testing regime be managed?
- What will be the approach to any employee refusal to participate in daily testing?
Many of these issues are not straight forward in practice and engage numerous health and safety, data privacy and employment law considerations. Employers should keep a close watching brief on the latest government guidance and seek legal advice where appropriate.
In the meantime, we have produced a Return to workplace: Key considerations for employers survey. Taking this survey will highlight the critical decisions which your business needs to consider and also help build a picture of how businesses overall are managing the latest developments – the results will be published in due course. The survey closes on 31 July 2021. You can participate in this survey here.
*The exemptions only apply to close contacts of a positive COVID-19 case; they do not apply where an individual tests positive. The exemption also only releases an employee from self-isolation for work purposes; self-isolation must be maintained for all other purposes.
**An individual is considered to be fully vaccinated post-14 days after the second dose of vaccine.