The laws and guidance imposed since the start of the Covid-19 pandemic have changed a number of times. For employers, navigating this landscape has been far from straight forward. A particularly complex area is self-isolation, with a recent change in rules leaving many employers uncertain of their legal responsibilities and the extent to which they can keep those at high risk of spreading Covid-19 away from the workplace. What do employers need to know about self-isolation and what are the legal risks to avoid?
Currently, workers who have tested positive for Covid must self-isolate for 10 days. In some cases, individuals who have been notified by NHS Test & Trace that they have been in close contact with someone who has tested positive for Covid must also self-isolate for 10 days.
So, who is exempt from self-isolation?
Close contacts are no longer required to self-isolate if, at the time of contact:
- they are fully vaccinated and at least 14 days has passed since their last jab;
- they are younger than 18 years 6 months;
- they are part of an approved COVID-19 vaccine trial; or
- they are unable to get vaccinated for medical reasons.
Instead, current guidance dictates that close contacts who are exempt from self-isolation are encouraged to get a PCR test, limit close contact with those outside their household and with anyone who is clinically extremely vulnerable, wear a face covering in enclosed spaces and take a lateral flow test twice a week.
Can an employer be liable if their worker breaches self-isolation?
It is an offence for an employer to knowingly allow a self-isolating worker to breach their isolation for any purpose related to the worker’s employment, with a possible penalty of up to £10,000. Employers should, therefore, clearly communicate to staff that anyone required to self-isolate must not attend the workplace or any other place for work purposes (for example, attending client premises).
But how can an employer know which workers should be self-isolating?
Helpfully, workers who are required to self-isolate are under a legal obligation to inform their employer of the start and end dates of their isolation, if they are due to undertake work-related activities at a location other than where they are self-isolating. However, workers may be deterred from informing their employer if self-isolation results in reduced income, so employers may want to consider paying self-isolating workers full pay. Where workers are able to work remotely during self-isolation, they are entitled to be paid as normal.
How will employers know which workers are exempt from self-isolation?
Workers are not legally required to inform their employer if they are a close contact of a positive case but are exempt from self-isolation. Employers are not expected to check if an individual is exempt from self-isolation. However, even those who are exempt from self-isolation can still catch and transmit Covid-19, and employers have a duty to provide a safe system of work for their staff. As such, employers may choose to require workers to disclose when they have been a close contact of a positive case, even if the worker is legally exempt from self-isolation.
The employer may then choose to ask the worker to remain away from the workplace or to take additional precautions. Another option is to require the worker to isolate for an initial period and to return following a negative PCR test. If the employer requires an exempt worker to remain away from the workplace, and they cannot work remotely, the employer will need to continue to pay them.
So can employers prioritise fully vaccinated workers?
Research shows that vaccination reduces the risk of getting seriously ill or dying from Covid, and reduces the risk of catching or spreading the virus. If a high proportion of workers are fully vaccinated this should result in fewer outbreaks and lower rates of absence. Critically, those who are fully vaccinated are no longer legally required to self-isolate after close contact with a positive case of Covid-19. This should result in lower numbers of absences amongst the fully vaccinated (unless the employer requires them to remain away from the workplace regardless).
Understandably, employers may seek to incentivise vaccine uptake by offering rewards to those who are fully vaccinated or to penalise the unvaccinated; for example, by refusing to pay contractual sick pay to those required to self-isolate after close contact. Both routes could result in discrimination claims, as the reasons why an individual is unvaccinated will often be because of a protected characteristic, including race, religion or disability. However, it may be possible for an employer to objectively justify such policies.
A less risky approach would be to encourage vaccine uptake by allowing paid time off to attend vaccination appointments and adjusting sick pay policies so as not to penalise workers who suffer side effects from the vaccine.
Can employers require their workers to disclose their vaccination status?
Vaccination status is special category data and employers should ensure that they comply with the rules for processing such data. Before asking staff to disclose their vaccination status, employers should ascertain whether it is necessary to hold such sensitive information about staff. For example, if the employer’s policy is to require all close contacts to remain away from the workplace for ten days, the employer does not require knowledge of an individual’s vaccination status.
There are discrimination risks in asking workers to disclose their vaccination status. Often, when individuals have not been vaccinated, they will inform their employer of the reason why. This may be related to their religious or philosophical beliefs, or due to a medical condition. Once the employer is aware of this, there is a risk that future action taken by the employer in relation to the worker may be perceived as influenced by that knowledge. Employers may also be put on notice of a previously unknown disability.
As workplaces become busier, the impact of the self-isolation rules will become more evident. Employers should take steps to encourage those who are required to self-isolate to follow the rules. Employers should also ensure that their policies and procedures minimise the risk of discrimination claims and that proper consideration is given before requesting and processing sensitive employee data.
This article was first published in HR News, read here.
Kerry Garcia
Sarah Taylor