There are currently hundreds of thousands of workers self-isolating in England, which is putting a strain on many businesses. There is also a lot of misinformation circulating about which individuals are now required to self-isolate. Recent government announcements about exemptions from self-isolation for “critical workers” and targeted testing programmes have added to the confusion.
It is vital that employers understand the rules on self-isolation. 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.
We set out below the key points employers need to know about the self-isolation rules.
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 with positive lateral flow test result
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.
Worker whose household member has COVID-19 symptoms or 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.
Workers notified by NHS Covid-19 smartphone app that they are close contact of positive case
There is no strict legal requirement to self-isolate if a worker is “pinged” by the NHS COVID-19 app, although the advice is to self-isolate and arrange a PCR test.
Many employers are, however, taking the cautious approach of requiring such individuals to remain away from the workplace until they receive a negative PCR test result. This policy may be difficult to implement in practice, given that there is no legal requirement to inform your employer about an app alert (unlike the legal requirement to inform your employer if you test positive for COVID-19 or are identified as a close contact by NHS Test and Trace).
Are any of my workers exempt because they are critical workers?
On 19 July, the government announced a new scheme which permits fully vaccinated workers to leave self-isolation in exceptional circumstances. The scheme only applies to individuals working in specifically approved workplaces who are named in a letter from a government department.
The application of the scheme is limited. It is described as “a small and targeted intervention to ensure that services critical to the safety and functioning of our society can continue.” It only applies to workers whose absence would lead to either or both of the following:
- “major detrimental impact on the availability, integrity or delivery of essential services – including those services whose integrity, if compromised, could result in significant loss of life or casualties”
- “significant impact on national security, national defence, or the functioning of the state”
Significantly, in his press conference on 19 July, the Prime Minister indicated that even he would not qualify for an exemption under the scheme; commenting that, “for the vast majority of us, myself included, I’m afraid we do need to stick with [the current] system for now.”
Workplaces attended by exempt critical workers will need to follow additional safeguards to minimise risk of transmission, including ensuring that social distancing is maintained and face coverings worn at all times.
Where employers believe the self-isolation of certain key employees as contacts would result in serious disruption to critical services, they should contact the relevant government department and provide information on the number of people who it is proposed would leave self-isolation, the roles those individuals need to perform, and the impact failure to do this would have and when this impact is likely to materialise. The relevant department will work with the Cabinet Office and the Department of Health and Social Care to determine whether individual cases qualify for the exemption. Although the government indicates that decisions will be made rapidly on a case-by-case basis, employers would be wise to approach the relevant government department as soon as possible if they consider members of their workforce should qualify under the scheme. Further information can be found here.
Critically, unless employers have a letter from a government department which specifically names their workers, the exemption from self-isolation does not apply and workers should self-isolate as directed by NHS Test and Trace.
There are separate arrangements in place for frontline health and care staff.
Are my workers exempt from self-isolation under a targeted testing scheme?
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.
What pay should a worker receive when self-isolating?
A worker who is unable to work because they are unwell will be entitled to their normal sick pay, whether this is Statutory Sick Pay (SSP) or contractual sick pay. Where an individual is legally required to self-isolate and is unable to work from home, they are entitled to receive SSP. If the worker is able to work from home in these circumstances, they should receive their normal pay.
A worker may be eligible for a payment of £500 if they are on a low income and meet certain conditions.
An employer should seek legal advice about the pay that a worker should receive if the employer requires the worker to stay away from the workplace in circumstances where they are not under a legal obligation to self-isolate and they are unable to work from home.
Wholesale change to self-isolation rules from 16 August 2021
From 16 August 2021, fully vaccinated close contacts will be exempt from self-isolation. Some employers may still choose to require workers who are identified as close contacts to remain away from the workplace after this date, in order to comply with their health and safety duties.
Kerry Garcia
Sarah Taylor