Covid-19 update for employers

We discuss the impact on employers of four recent Covid-related developments:

Minimum self-isolation period reduced to five full days for positive Covid-19 cases

From 17 January 2022, the mandatory period of self-isolation for anyone who has tested positive for Covid-19 has been reduced from 10 days to five full days, provided that the individual has two consecutive negative lateral flow device (LFD) test results and does not have a high temperature. The two LFD tests must be taken at least 24 hours apart and the first test must be taken on no earlier than the fifth day of isolation. 

Government guidance provides that anyone who has received positive test should self–isolate but strictly the legal requirement to self-isolate only applies if the individual is notified by NHS Test and Trace that they must self-isolate due to their positive test result. Failure to self-isolate for the relevant period can result in a fine, starting from £1,000. For these purposes, day one of the mandatory period of self-isolation is counted as the day following the day on which symptoms started or, if the individual is asymptomatic, the day following the day on which they took the positive Polymerase Chain Reaction (PCR) or LFD test (whichever test was taken first). This means that if, for example, an individual first exhibited Covid-19 symptoms on the 15th of the month (or, if they did not have symptoms but their first positive Covid-19 test was taken on the 15th), they may take their first LFD test for early release from the 20th of the month (as this is day five of the self-isolation period). If their LFD test results are negative on the 20th and 21st, and they do not have a high temperature, they may end their isolation period straight after the negative test result on the 21st of the month.

If the individual continues to have positive LFD test results, they must remain in self-isolation for up to 10 days. They are, however, released from self-isolation after the 10th full day, even if they receive a positive LFD test result on the 10th day. The guidance confirms that the individual is “unlikely to be infectious after the 10th day of [their] self-isolation period.”Such individuals are, however, told that they “may choose to limit close contact with other people, especially those who are at higher risk of severe illness until 14 days after the start of [their] self-isolation period.”

Guidance for those released from self-isolation after five full days

If an individual receives two consecutive negative LFD test results, it is likely that are no longer infectious. However, they are strongly advised to limit close contact with other people in crowded or poorly ventilated spaces, to work from home and to minimise contact with vulnerable people for the full 10 days from when their isolation period began. 

Self-isolation after coming into close contact with someone with Covid-19

Individuals are also required to self-isolate by law if they are notified by NHS Test and Trace that they are a close contact of a positive case of Covid-19 and are not exempt from the requirement to self-isolate. 

Individuals who are not exempt and who live in the same household as a positive case must self-isolate until 10 full days after their household member first developed symptoms or, if that household member did not have symptoms, 10 full days after the date of their positive test.

Individuals identified as the contact of a positive case outside their household must self-isolate until 10 full days after they were in contact with the positive case. In both cases, the period of isolation ends at 23:59 on day 10.

Failure to self-isolate for the full 10 days may result in a fine, starting from £1,000.

Those notified that they have had close contact with someone infected with Covid-19 are exempt from the requirement to self-isolate if they are:

• fully vaccinated (which means having received two doses of an approved vaccine or one dose of the single-dose Janssen vaccine at least 14 days prior to having had close contact with a positive case);
• below the age of 18 years and six months;
• current or past participants in an approved Covid-19 vaccine trial; and/or
• unable to get vaccinated for medical reasons.

Exempt close contacts are not required to self-isolate but are strongly advised to take an LFD test every day for seven days following notification, or until 10 days since their last contact with the person who tested positive for Covid-19 if this is earlier. Individuals should take this daily LFD test before leaving the household for the first time each day. If the individual receives a positive LFD test result, they are advised to self-isolate immediately. The government is reportedly considering whether to reduce the daily testing period for fully vaccinated contacts; however, as at 17 January 2022, this remains seven days.

To further reduce the risk of transmitting Covid-19, exempt close contacts are also strongly advised to work from home if they are able, as well as limiting close contact with people outside their households and wearing face coverings, especially in crowded, enclosed or poorly ventilated spaces. They should follow this advice for 10 full days after their most recent contact with the person who has tested positive with Covid-19, or if the positive case is a member of their household, until that household member reaches the end of their self-isolation period. 

If any close contact develops any of the symptoms of Covid-19 (i.e. a new, continuous cough, loss of or change to taste or smell or a temperature) even if these are mild, they should arrange to have a PCR test. If they test positive for Covid-19, they will need to self-isolate, even if they are exempt from self-isolation as a close contact.

When should someone have a PCR test?

From 11 January 2022, anyone in England who receives a positive LFD test result for Covid-19 will be required to self-isolate immediately and, in most cases, will no longer be required to take a confirmatory PCR test. If an individual receives a positive LFD result, they are advised to notify NHS Test and Trace who will, in turn, inform them of the legal requirement to self-isolate. However, there is no legal requirement for individuals to inform NHS Test and Trace of a positive LFD result. 

Individuals are still advised to take a PCR test (rather than a LFD test) if they have any of the following symptoms, even if their symptoms are mild: a high temperature, a new, continuous cough or if they have lost their sense of smell or taste or their sense of smell or taste has changed. 

Close contacts of a positive case who are not exempt from the requirement to self-isolate (e.g. individuals who are not fully vaccinated), are advised to take a PCR test as soon as possible, because they are considered at a higher risk of being infected with Covid-19.

In contrast, close contacts who are exempt from the requirement to self-isolate (e.g. those who are fully vaccinated), are advised not to get a PCR test unless they develop symptoms.

Statutory Sick Pay Rebate Scheme reintroduced

The Statutory Sick Pay Rebate Scheme is being reintroduced across the United Kingdom with effect from 14 January. The Scheme allows employers with fewer than 250 employees (as at 30 November 2021) to recover up to two weeks' Statutory Sick Pay for each employee who is unable to work due to Covid-19 in relation to days of absence after 20 December 2021 (even if the period of absence began on or prior to this date). The Scheme also extends to employees who are absent due to a requirement to self-isolate. Employers must submit any relevant claims by no later than 24 March 2022.

What does this all mean for employers?

It remains a criminal offence for an employer to knowingly allow a worker to attend the workplace when they are required to be self-isolating. It is therefore critical that employers understand these new rules and review their policies and procedures accordingly. They should also clearly communicate the change in rules to the workforce.

Now that the onus is on individuals to report the results of a home-administered LFD test via a government website, there is an increased risk that individuals may not self-isolate if they exhibit symptoms of Covid-19 and may not report a positive LFD result. There is also a risk that individuals with Covid-19 symptoms will not take a PCR test. The risk is heightened where the individual’s income will reduce during a period of self-isolation.

Employers are under a duty to provide a safe system of work for their staff and this includes staff members who are clinically vulnerable to Covid-19. The risk of staff members attending the workplace in circumstances where they are advised (but not necessarily legally required) to self-isolate should be addressed in the employer’s risk assessment and steps taken to mitigate such risk.

Employers may consider requiring individuals to stay away from the office for longer periods than they are legally required, especially if it is possible for them to work from home. For example, where an individual works with clinically vulnerable colleagues and other measures to prevent transmission are deemed insufficient, the employer may consider requiring anyone who has tested positive for Covid-19 to remain away from the workplace for the full 10 day isolation period, even if they receive two negative LFD test results on day five and day six or on subsequent days. In this case, the individual would be entitled to their normal pay for the additional days (if these fall on working days), even if they are unable to work from home.

If individuals are able to work from home, employers may also consider asking fully vaccinated employees who have been in close contact with someone infected with Covid-19 to work from home for a period of time.