Today marks a landmark moment in the self-isolation rules implemented to help manage the coronavirus pandemic in England. Now, close contacts of someone who has tested positive for coronavirus will not have to automatically self-isolate for 10 days, provided they are fully vaccinated* or are aged under 18 years 6 months.

This development is hugely welcome for employers who, in recent months, have had to manage the impact of significant numbers of employees being ‘pinged’ by the NHS COVID-19 App, resulting in significant staff shortages and often severe disruption to the business.

Here is a round-up of what the new rules mean for employers:

Do employees have to tell us if (1) they have been contacted by NHS Test & Trace; and/or (2) if they are ‘pinged’ on the NHS COVID-19 App, and alerted that they are a close contact of a positive case?

1. Employees are only under a legal obligation to notify you if NHS Test & Trace informs them that they are required to self-isolate. From 16 August 2021, however, there will be circumstances where NHS Test & Trace is in touch with an employee but it is then identified that the employee is exempt from self-isolation because of their vaccination status. In these circumstances, employees are not required to notify you about the contact by NHS Test & Trace.
2. No, employees do not have a legal obligation to tell you if they have been ‘pinged’ on the NHS COVID-19 App.

Where an employee makes us aware that they have been (1) contacted by NHS Test & Trace; and/or (2) ‘pinged’ on the NHS COVID-19 App, and alerted that they are a close contact of a positive case:

• Can we ask doubly-vaccinated employees to still come into the workplace?
  1. Yes, from 16 August 2021, employees do not have to self-isolate if they are contacted by NHS Test & Trace and notified that they are a close contact of a positive COVID-19 case, provided they are at least 14 days post-second dose of an approved vaccine, or are aged under 18 years 6 months.
  2. Yes. The requirement to self-isolate as a result of being ‘pinged’ on the NHS COVID-19 App has never been a legal obligation; however, it has been strongly advised as part of government guidance. From 16 August 2021, however, employees will no longer be advised to self-isolate if they are at least 14 days post-second dose of an approved vaccine, or are aged under 18 years 6 months.

Notwithstanding the above, however, employers still need to remain mindful of the fact that employees who have been in close contact with a positive case, may have contracted the virus and are still able to transmit it to others, regardless of their vaccination status. Maintaining appropriate COVID secure measures, as identified through a health and safety risk assessment, is therefore key to minimising the impact of possible future workplace cases.

Employees who are identified as  a close contact of a positive case are advised to take a PCR test as soon as possible, regardless of their full vaccination status. However, this is not a legal requirement.

• Can we ask non-vaccinated or singly-dosed employees to be in the workplace?

In most cases, employees who are not vaccinated, or who have only received a single dose, will not be exempt from the requirement to self-isolate if they are contacted by NHS Test & Trace; or if they are ‘pinged’ on the NHS COVID-19 App, and told that they are a close contact of a positive case.

• 1. In the case of contact by NHS Test & Trace, the requirement to self-isolate remains a legal requirement. This means that employees cannot be asked to attend work, and there are potential fines for employers for non-compliance.
  2. In the case of a ‘ping’ on the NHS COVID-19 App, government guidance remains that individuals should self-isolate. However, there are no legal obligations to do so. Employers should carefully consider how this impacts on their approach to employees being in the workplace and take legal advice as appropriate.

There are also some critical sector exemptions for employees who are not fully vaccinated. These exemptions allow close contact employees in certain specified and approved businesses to participate in daily workplace testing as an alternative to self-isolation.  The employee must take a daily lateral flow test for 7 days and is only released from self-isolation for work (and other, very limited) purposes.

Can we require employees to self-isolate when they are a close contact of a positive case, even if they are doubly vaccinated?

There may be circumstances where an employer does not wish to risk a workplace outbreak by allowing an employee who is a close contact of a positive case to attend work, notwithstanding the fact that the employee is doubly vaccinated.  In general, where there are reasonable and non-discriminatory grounds for this, it may be possible to require the employee to stay at home and self-isolate. In this situation, the employee can be asked to work from home. If this is not possible, however, the employee may still be entitled to normal pay for their period of self-isolation. Legal advice should be sought.

What self-isolation obligations now apply if an employee tests positive?

There has been no change to the self-isolation obligations for employees who test positive. This means that they will be required to self-isolate for 10 full days after the date their symptoms started, or after the date of their positive PCR test, whichever is earlier.

What self-isolation obligations apply if an employee displays COVID symptoms?

Employees who display any COVID symptoms should immediately go home, arrange to take a PCR test and self-isolate while they await the results of the test. ‘Symptoms’ of coronavirus are designated by the NHS to be (1) a new continuous cough; (2) a high temperature; or (3) loss of taste or smell.

Can we ask an employee about their vaccination status?

The new rules place the spotlight on an employee’s vaccination status and raise the question of what an employer is entitled to know in this regard.  Both employment law and data privacy considerations come into play. Employers need to be conscious that health data is special category data and therefore significant protections apply.

The issue is likely to come to the fore in respect of employees who choose to notify the employer that they have been identified as a close contact, or where there is a positive workplace case and the employer needs to identify who should self-isolate as a close contact. Here, the employer will normally be unable to confirm/identify who needs to self-isolate without knowing individual employees’ vaccination status.

The ICO has, to date, adopted a fairly pragmatic approach to the pandemic; however, it is clear that employers should not be adopting a ‘just in case’ approach. This means that employers should not be obtaining details of employees’ vaccination status as a matter of course. However, when that data is required to manage specific self-isolation requirements, it may be possible for employers to point to a lawful basis for processing that data in order to determine who is required to self-isolate. However, the data must still be processed in accordance with the data protection principles. Legal advice should therefore be sought on the particular circumstances of the situation.

Can fully vaccinated employees opt to self-isolate instead of returning to the workplace if they are identified as a close contact of a positive case?

In light of the change to self-isolation rules from 16 August 2021, a requirement for fully vaccinated employees to attend work, notwithstanding their notification of being a close contact of a positive case, is likely to be a reasonable management instruction. In general, therefore, employers can expect fully vaccinated employees to attend work.

However, notwithstanding this, there may be employees who are genuinely and reasonably concerned about returning to work in the knowledge they have been in close contact with coronavirus. Disciplinary action should not therefore be the first port of call for reluctant attendees. In the first instance, employers should discuss the employee’s concerns with them, reassure the employee about the workplace COVID secure measures in place and seek to achieve an amicable resolution to the issue.

Useful links

• NHS Test & Trace in the workplace
• Working safely during coronavirus
• Stay at home: Guidance for households with possible or confirmed coronavirus
• Guidance for contacts for people with confirmed coronavirus infection who do not live with the person
• Coronavirus: How to stay safe and help prevent the spread

^{*Fully vaccinated means that an individual is 14 days post-second dose of an MHRA approved COVID-19 vaccine administered in the UK.}