5th October, 2020
NHS Test and Trace Service – Updated Guidance For Employers
NHS Test and Trace Service (England) and Test, Trace and Protect (Wales) – updated guidance for employers
In an article published on 21 September, I outlined the key features of the two tracing systems in place in England and Wales aimed at reducing the spread of Covid-19. That article can be found by following this link: Click Here
Since that article was released, the guidelines relating to the tracing systems have been updated and new legislation governing employer’s and employee’s obligations have come into effect in England.
The Health Protection (Coronavirus, Regulations) (Self-Isolation) (England) Regulations 2020
The new regulations came into force on 28 September 2020 and set out the requirements for self-isolation, as well as including further guidance for employers and workers on their responsibilities. The Regulations only apply in England.
Any adult who is notified that they have tested positive for Covid-19 or have had close contact with someone who has tested positive for the virus must now self-isolate for a period of 10 days beginning with the date on which symptoms first developed or from the moment a notification to self-isolate is received. Similarly, if a child tests positive for Covid-19 or has come into close contact with someone who has tested positive, they must self-isolate for 10 days.
Anyone living with a person who has tested positive for Covid-19 must also self-isolate for 14 days beginning with the date the symptoms first developed, or the date of the test.
Regulation 2 confirms that the affected person must remain at home, or the home of a family member or friend (the ‘designated place’), and must not leave unless absolutely necessary. Regulation 2 (3)(b) specifies the limited circumstances under which the person who is self-isolating may leave the designated place, which includes seeking urgent medical assistance or to avoid a risk of harm.
The responsibility lies with the employees who are self-isolating to inform their employer of the requirement to self-isolate and the start and end dates of the isolation period (Regulation 8). The notification should be made as soon as reasonably practicable and prior to the next time they are due to work during the self-isolation period.
Similarly, agency workers must inform the agent, principal or their employer of the requirement to self-isolate and the start and end dates of the period of self-isolation (Regulation 9). Agents must then inform any principals for whom the agency worker was to be supplied.
Whilst it is open to the employee to work from home, they must not leave the designated place for the purposes of any work-related activities. Breach of this obligation could enable an ‘authorised person’ to remove the employee from the premises.
Regulation 7 specifies that the employer of a self-isolating worker must not ‘knowingly allow the worker or self-isolating agency worker to attend any place other than the designated place, during an isolation period, for any purpose related to the worker’s…employment.’
The responsibility lies with the employer to ensure that their employees do not attend the workplace, or any other location, for any work-related reason. Employers may allow workers who feel well to continue to work from home.
Breach of the Regulations would amount to an offence. A fixed penalty may be issued to anyone who contravenes the requirement to self-isolate or any employers who breach Regulation 8. Fixed penalties range between £1,000 and £10,000. Proceedings for an offence may also be brought by a Local Authority or the Crown Prosecution Service.
Although the Regulations apply in England only, it is anticipated that similar regulations and fines will be imposed in Wales, Scotland and Northern Ireland.
NHS Covid-19 App
On 24 September 2020 the NHS Covid-19 contact tracing mobile app was launched in England and Wales. The free to use mobile app is aimed at limiting the spread of Covid-19 through the tracking of mobile devices as well as providing advice about symptoms, and allowing users to request tests and receive test results.
Devices communicate with one another through Bluetooth, with each device assigned a random, unique ID number. App users will receive a notification if they have been in close contact with any other app users who have tested positive for Covid-19. The risk to the app users who have been in contact with a person who tests positive will be assessed based on the proximity between the devices and the amount of time spent in close contact with one another. Those at risk of developing the virus will receive a notification to self-isolate for 14 days.
Hospitality venues and other designated venues must now display ‘QR Codes’ which can be scanned by app users to log their attendance at the venue. Staff may also scan the code but this is not mandatory. If the venue later has an outbreak a notification will be issued to all app users to either book a test or to self-isolate. QR Codes may be generated through the gov.uk website.
Workers who are using the NHS Covid-19 app are advised to pause the contact tracing feature in limited circumstances, including:
- When working behind a Perspex (or equivalent) screen;
- If placing the phone in storage (e.g. a work locker) where it will not be on their person; or
- Where the worker is in a health or care setting practising infection prevention and control.
App users advised to self-isolate will be provided with evidence that they have been asked to do so. In Wales, a self-isolation note will be provided which can then be shared with the employer. Similarly, the English NHS Test and Trace service will provide evidence of the requirement to self-isolate. As with any other notification to self-isolate, workers must not attend the workplace during the period. The fines specified in the Regulations will apply for any employers or workers in breach of instructions to self-isolate.
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