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NHS Test and Trace Service (England) and Test, Track and Protect (Wales) – what does this mean for employers?

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21st September, 2020

As part of Government plans to gradually reduce lockdown, the respective Governments in England and Wales launched contact tracing systems and guidelines in June.

Whilst the contact tracing systems and rules are substantially the same in both countries, there are separate guidance’s in place for England and Wales on the respective Government websites which employers should ensure that they are familiar with, along with the accompanying guidance for employers.

More specifically, the contact tracing systems have different titles: England has introduced the NHS Test and Trace Service and Wales has introduced the Test, Track and Protect.

How does it work?

Anyone with symptoms of COVID-19 can get a test. If they get a positive test result, the relevant contact tracing service for England or Wales will contact them and ask them to share information about any close contacts they had just before or after they developed symptoms. This will usually be carried out by means of text message, email or telephone call and the individual will be sent a link to the NHS Test and Trace website where they create an account and record details about their recent close contacts.  This would include details of any setting the individual has been to where other people are present (such as a GP surgery, a school or a workplace), or been in close contact with (other than members of their household), in the 48 hours before they developed symptoms or since they’ve developed symptoms.

The relevant service will then contact those individuals who have been identified as a close contact, to notify them that they must self-isolate in accordance with medical advice, regardless of whether they have symptoms or are feeling unwell.

The guidance states that family members or other household members living with the individual who has tested positive must isolate for 14 days from when the individual’s symptoms began.

What is “close contact”?

Both guidance’s for England and Wales specify that the following would be examples of close contact:

  • Having face-to-face contact with someone less than 1 metre away (including where a face covering or mask has been worn);
  • Spending more than 15 minutes within 2 metres of someone; and
  • Travelling in a car or other small vehicle with someone (even on a short journey) or close to them on a plane.

Impact upon employers if an employee needs to self isolate

Employers must understand that it is a legal requirement for employees who are contacted by this service to comply with self-isolation guidelines. They must not place pressure on employees to return to work prior to the end of the self-isolation period in these circumstances. If however, the employee is able to safely carry out their duties from home, it would be reasonable for employers to request that they do so unless they are unwell and have reported their sickness absence in line with usual reporting procedures.

Employees who are unable to work from home may be eligible for Statutory Sick pay during a period of self-isolation.  For information on Statutory Sick Pay and self-isolation, please refer to Senior Associate, Debbie Coyne’s, article of 10 September 2020.  Employers should also ensure that they do not treat employees unfavourably or refuse to let them return to work following a period of self-isolation. Note that the Government recommends that self-isolation as part of either contact tracing system should not be recorded against and employee’s sickness record. Employers who do not comply with regulations and act reasonably may find that they are facing Employment Tribunal proceedings further down the line.

The Government has just introduced a new support package that will be in place from 28 September to support those individuals on low incomes who need to self-isolate. For those on lower incomes who meet the eligibility criteria and cannot work from home, they will receive a one-off payment of £500.  In addition, new fines for breaching self-isolation rules will start at £1,000 but could increase to up to £10,000 for repeat offences or for those preventing others from self-isolating.

Any employers who are found to be forcing employees to come to work when they are asked to self-isolate could be issued with high fines.  New steps will also be taken to ensure that people (and businesses) are complying with the rules.

Whilst many people are following the rules around self-isolation, many employees feel that they cannot tell employers about the need to self-isolate if they are unable to work from home and would only be entitled to SSP.   Employers are under an obligation to encourage employees to tell their employer that they have been asked to self-isolate and to assist them during a period of self-isolation.   The new penalties in place support this obligation.

Employers should not share the identity of an employee who has tested positive with other employees, to ensure that their privacy is protected unless the employee consents to the employer doing so.

Employer’s obligations

It is essential employers play their part in making workplaces a safe environment. Employers are under Health and Safety obligations and to ensure that they provide a safe working environment, including carrying out specific COVID Risk assessments.  Government guidance also recommends that employers should encourage workers to:

  • Respond to any notifications to self-isolate by public health or if they display symptoms;
  • Support employees in self-isolating;
  • Issue information to employees about where they can find information if they are asked to self-isolate, which could include details of the government support package and eligibility criteria for low paid workers;
  • Consider measures to improve their social distancing if they have been contacted to self-isolate on multiple occasions;
  • Ensure employees are aware of the potential penalties they could face after 28 September if they do not self-isolate.

Where self-isolation is triggered by workplace contacts, employers should consider what further mitigating actions could be taken in the workplace to reduce the risk and review their COVID-19 Risk Assessment.  Measures may include screens between colleagues, separate people, reducing the number of employees in the office/work environment.

In accordance with Department of Health and Social Care advice, employers should also maintain records of all staff, customers and visitors in the workplace to support the NHS Test and Trace Service.

If there is more than one case of COVID-19 in a workplace, employers should contact their local health protection team to report the suspected outbreak.

COVID-19 testing in the workplace

On 10 September 2020, the Government also produced a guidance document for employers on rolling out COVID-19 testing in the workplace. This is for employers who wish to introduce their own testing system outside of testing systems in England and Wales.

It is an entirely voluntary decision for employers to introduce COVID-19 testing for their staff. However, if done correctly, testing can provide confidence to employees and customers in the workplace and may help to protect business continuity.

Employers wishing to introduce workplace testing should follow the guidance and legal obligations to follow as set out on the government website.

Top tips for Employers:

  1. Carry out a COVID-19 Risk Assessment and ensure employees are made aware of the outcome and update, where appropriate, Health and Safety Policies and procedures
  2. Implement recommendations from the Risk Assessment and Government Guidance on safe working.
  3. Review employment policies, including but not limited to:
    1. Sickness absence policy and reporting procedures
    2. Working from home policies/procedures
    3. Flexible working procedures
  4. Ensure employees are notified of updated policies and procedures.
  5. Ensure employees are aware of what they should do if they develop COVID-19 symptoms and/or are contacted by either tracing system.
Debbie Coyne

Employment

Senior Associate
Email: [email protected]
Tel: 01244 405 537

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