From 16 August 2021, self-isolation rules in England for close contacts of a positive Covid-19 case are being relaxed. Whether someone is “isolation-exempt” will depend on their age or vaccine status. However, whilst the relaxation in the rules are a welcome antidote to the “ping-demic”, do the changes place too many decisions in the hands of employers? Emma O’Connor, Director, discusses the relaxation in the rules and asks what issues do they raise for employers.
Self-Isolating: What is changing?
From 16 August 2021, self-isolation rules for individuals in England identified as a close contact of a positive Covid-19 case are changing. Under the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) (Amendment) Regulations 2021, from 16 August 2021, the following individuals will no longer be legally required to self-isolate if identified as a close contact:
Individuals under 18 years of age; and
Individuals who are either (i) double vaccinated or (ii) had their second vaccination at least 14 days before coming into close contact with the identified positive Covid case
(Referred to in this note as “isolation-exempt”)
Those who are able to prove that they are unable to have the covid vaccine because of a clinical (rather than an ethical or personal reason) or who has been part of a Covid-19 vaccine clinical trial will also be able to take advantage of the exemption.
However, everyone, whether isolation-exempt or not, will have to abide by government self-isolation rules if they themselves test positive for Covid following a PCR test. The relaxation in the self-isolation rules apply solely to identified close contacts.
This general note applies to changes in England. Please also check for any sector specific guidance.
What if someone who is isolation-exempt is contacted by NHS Test and Trace?
The identified close contact will still be contacted by NHS Test and Trace by phone, text or email. Those who are isolation-exempt will be advised to take a PCR test and if negative then they do not need to isolate. If positive, then yes, the individual will need to isolate as before. However, taking a PCR test is not mandatory; although someone who is contacted and tests negative is being advised to act cautiously (e.g. wearing a face covering in an enclosed space and avoiding contact with anyone who is clinically vulnerable to Covid) although these steps are not mandatory either. According to government advice, the isolation-exempt individual will not be required to self-isolate while they wait for the results of the PCR test (unless they have or develop Covid symptoms whilst waiting).
For those who do not meet the isolation-exempt criteria, they should continue to comply with government self-isolation rules (e.g. isolate for 10 days) if contacted by NHS Test and Trace as a close contact of a positive PCR test. Being told to isolate by NHS Test and Trace is a legal order. Failure to comply with a mandatory request by NHS Test and Trace to self-isolate could lead to a £1,000 fine, increasing to £10,000 for other breaches.
What about the NHS App?
The NHS App remains voluntary and not compulsory to download.
NHS App users identified as a close contact of a positive Covid test who confirm that they are isolation-exempt will not need to self-isolate if “pinged” by the NHS App. The isolation count-down clock on the App is automatically turned off once someone self-declares their isolation-exempt status. As with contact from NHS Test and Trace, identified close contacts will be given advice to book a PCR test. They would also be advised to take other cautious steps such as wearing a face covering in enclosed spaces and avoiding contact with the clinically vulnerable.
The NHS App is being modified from 16 August so that when someone is “pinged” they can self-declare they are isolation-exempt. The NHS App does not store any personal data or vaccine status data so is relying on individuals to give correct information.
For those “pinged” who are not isolation-exempt do they need to isolate? The government say that those “pinged” will be instructed to isolate. If isolation is an “instruction” it would be advisory rather than mandatory. Nothing in the government announcement regarding the move to Phase 4 Reopening changes the previous wording that isolating following a “ping” is an “instruction”.
There will also be changes made to the NHS App so that if someone tests positive but is asymptomatic, the app will look for their close contacts in the two days prior to the positive test, rather than looking for the contacts of the positive person in the five days before the test.
Individuals and employers are being encouraged to support self-isolating.
What happens if someone who from the 16 August would be “isolation-exempt” is told to isolate because they are a close contact prior to 16 August – do they have to continue isolating?
There are provisions in the Regulations which state that where someone is isolation exempt, they can, from 16 August, come out of isolation. Remember that the individual who is exempt can choose to continue to isolate (see below for issues).
Those who do not meet the exemption criteria will have to continue isolating.
For clarity, if someone tests positive for Covid before 16 August, these isolation changes do not make any difference. The changes are only for close contacts that are isolation-exempt.
Should employers ask if an employee is “isolation-exempt”?
There is nothing requiring employers to seek their workforce’s vaccination/exemption status. Whilst it should be straightforward to find out if a member of staff is under the age of 18, identifying those who meet the vaccination exemption may be difficult since an employee’s vaccination status is sensitive personal data and some employees may be unwilling to share such information with their employer. Whilst an employer may ask employees for such information, there are other issues to consider such as contractual, cultural and discriminatory as well as those relating to data protection. It is not as simple as asking staff to tell their employer and advice should be sought where employers want to ask employees about their vaccination status. The Regulations do not place an obligation on employers to check the vaccine status of its workforce.
Instead, employers may wish to use “self-declaration”. So, ask staff to confirm that if they are either contacted by NHS Test and Trace or “pinged” by the NHS App as a close contact that they meet the isolation-exempt criteria and they are symptom free to return to work. Employers may want to include other conditions such as a negative lateral flow/PCR test (see issues below) or ask that staff continue to act cautiously. Add to that if the worker has any symptoms they must get a PCR test.
If the requirement to take a PCR test for someone who is isolation-exempt is not mandatory, should employers ask for one to be taken before allowing someone back to work?
This will depend. Some employers may want to include testing as part of their health and safety or infection control strategy/risk assessment; however, ACAS recommend this is done following consultation with staff and drawing up a clear policy. Whilst in theory, employers could ask staff who are advised to, to take a PCR test (or confirm that they have done) as a close contact this would take careful planning. There are data issues to consider (as raised above) and also, what happens if an employee does not agree to take a test, they cannot be forced to do so. Whether asking employees to take a test is fair and reasonable would depend on factors such as the nature of the employee's work, sector specific guidance and any evidence on the necessity of testing in the particular environment. Other issues should be considered such as working from home.
Do employers have a legal duty to make sure someone isolates?
Where someone is contacted by NHS Test and Trace, the legal duty to self-isolate rests with the individual. However, if an employer knows that its worker has been contacted by NHS Test and Trace and advised to isolate and allows, encourages or forces someone to work when they should be self-isolating, this is a criminal offence.
Should we notify staff of the changes to the self-isolation rules?
It would be advisable to tell staff what the changes are with regards to self-isolation and what the business’s specific expectations are, particularly, if employers want to use a system of self-declaration if notified as a close contact/isolation exempt.
The main point to note is that if someone tests positive for Covid, they have to isolate regardless of their isolation-exempt status. There may also be employer specific rules to be set out and also what the consequences of coming to work when they should be self-isolating are.
Undertaking risk assessments and clear communication are really important at any time, but especially now as businesses prepare their return to work plans.
What if someone who is isolation exempt, chooses to isolate after 16 August?
This is an interesting point. The relaxation of the self-isolating rules for close contacts who are isolation-exempt seem to conflict with the overall messaging around test, trace and isolate. We are told by the government that test and trace is part of the overall infection control strategy. There is also evidence that those who are “double-jabbed” can still catch and spread Covid-19 (even if they themselves have no symptoms). In the introduction to the Regulations it states that “These Regulations are made in response to the serious and imminent threat to public health which is posed by the incidence and spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) in England.” On the one hand, the government is telling employers to support the isolation process but on the other allowing staff to come to work if they are symptom free and isolation-exempt. This potentially places employers in a difficult position.
Also, are we assuming that people will want to come to work if isolation-exempt? If the relaxation in the self-isolating rules for close contacts is not mandatory (i.e. someone is not forced to refrain from isolating), could someone choose to ignore the new rules from 16 August and continue to isolate? The answer has to be yes. Similarly as we saw with the mask mandate being relaxed on 19 July, people have continued to wear masks although legally they do not have to. Is the same going to happen for self-isolation?
It would be difficult for an employer to force someone to come to work in these circumstances, particularly, if the person was isolating because they were clinically vulnerable to Covid or lived with someone who was. Self-isolating is still an infection control mechanism. Reducing pay, disciplining or taking some other detrimental action could amount to disability discrimination or give rise to other legal actions.
Someone who is isolating could continue to work from home or if this is not possible, be paid SSP from day one and not day 4 of their isolation period, again this would be difficult to do if the employer has a fully paid sick-pay policy.
What if we want someone who is isolation exempt not to come to work if contacted by NHS Test and Trace?
If we think about the reverse of the argument above – what if someone who is isolation-exempt and symptom free wants to come to work but the employer wants them to isolate? It is possible this could happen. Whilst there are specific rules in certain sectors, if an employer wants to maintain an isolation policy at work it would need to have clear health and safety grounds and have carried out a risk assessment. It would also be sensible to discuss this with staff and set clear rules. Also, what happens about pay? The employee may be able to work remotely. However, if an employee was “ready, willing and able” to return to work but the employer is saying “no”, they should be paid in full for the time off.
Much will depend on what area of the business the worker works, in what sector the employer is in and their risk assessments.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.