The Implications of Test and Trace for Employers

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• The Implications of Test and Trace for Employers

24 June 2020 | Updated 25 June 2020

Following Test and Trace instructions has been described as "civic duty", however, the current voluntary nature of the scheme does provide some challenges for employers.

The government’s first attempt at the app was announced on May 5, but in a further update on 18 June, it was revealed that audits found it could detect only one in 25 contacts on Apple phones. A manual version of the scheme was released in late May, but without the contact-tracing app, which remains under construction.

The intention of the Test and Trace scheme is to serve as an additional way to reopen society and ensure further restrictions on the spread of the virus. The programme looks to ensure that anyone who develops symptoms of COVID-19 can quickly be tested. Close recent contacts of anyone who tests positive for coronavirus will then be traced and, if necessary, notified that they must self-isolate at home.

Certification if a person is required to self-isolate will be issued, to be used as formal evidence to submit to an employer.

Matthew Cole, Partner in Prettys employment law team, examines some of the potential implications for employers.

 

“It’s a highly voluntary scheme at the moment, which increases uncertainty as a degree of discretion is involved for employers.”

–Matthew Cole

Partner, Prettys employment law team

 

No Legal Requirement to Report

 

From a legal point of view, there is currently no legislation requiring people to report coronavirus symptoms, nor are there requirements to isolate or disclose symptoms to one’s employer, explains Matthew Cole:

“It’s a highly voluntary scheme at the moment, which increases uncertainty as a degree of discretion is involved for employers”.

Employers and HR departments will need to prepare themselves for situations such as employees informing them at short-notice that they have COVID-19 symptoms, or that they share a house with someone who has, or they’ve been contacted by NHS Test And Trace. All will result in the employee being encouraged to self-isolate for at least seven days.

 

A Breach of Health and Safety Rules?

 

An additional complication is that the workplace is, of course, a place where people are in contact with others, and a person who reports coronavirus symptoms may inadvertently also lead to their colleagues needing to self-isolate. This may potentially leave large absences in the workforce.

According to the government guidance, it’s vitally important that employers play their part by not only making their workplaces as safe as possible, but by “encouraging workers to heed any notifications to self-isolate and supporting them when in isolation”.

Cole predicts that a failure to do so could constitute a breach of health and safety rules:

“I think there are going to be health and safety issues however, if we have an employee who notifies us that they have been told to self-isolate, but we tacitly encourage them back into the workplace, or at least we don’t discourage them from coming back, we are going to be potentially breaching our obligations around safe systems of working.”

Cole highlights the government advice to continue to communicate with workers who may have to self-isolate and to continue to provide support. This includes allowing people to work from home if they remain well, finding alternative work that can be completed at home during the period of self-isolation wherever possible.

 

Sick Pay

 

According to Gov.uk, if people can’t work from home, employers must ensure any self-isolating employee is receiving sick pay and give them the option to use their paid leave days if they prefer.

So if an employee cannot work from home, employers must ensure any self-isolating employee is receiving sick pay and give them the option to use their paid leave days if they prefer.

Cole interprets this as referring to occupational sick pay provided by an employer, rather than Statutory Sick Pay (SSP), but feels that the lines are a little blurred on this currently:

“My take on this is that the government would like every employer to pay full occupational sick pay during any period of self-isolation, even if the employee cannot work.”

The recommendation is that employees in self-isolation are entitled to Statutory Sick Pay for every day they are in isolation, as long as they meet the eligibility conditions. However, an employee can ask to take their paid holiday for the time they’re off work, entitling them to full pay for the duration of their leave, as opposed to Statutory Sick Pay, if they choose.

So there is a lot of uncertainty here regarding how employers can make sure their staff are correctly and fairly compensated if having to self-isolate as a result of the Test and Trace scheme.

 

SSP, Occupational Sick Pay or Occupational Furlough Scheme?

 

Cole asserts that an Occupational Furlough Scheme might help some employers. This would separate COVID-19 absences from usual sickness absences and allow for greater control when dealing with those who cannot work due to self-isolation.

One way to plan ahead, Cole suggests, is to ascertain early on which tasks or projects can be more easily worked on from home, during self-isolation. These can then be reserved for those not able to come into the workplace

 

A Disciplinary Offence to not Self-Isolate?

 

The current voluntary nature of the Test and Trace Scheme means that there have been questions regarding how to manage this in the workplace. Should it be made a disciplinary offence to not self-isolate if instructed to by contact tracers.

Cole explains the importance of “playing your part” as an employer in the contact tracing scheme and to consider updating disciplinary procedures accordingly.

 

Mitigating the Effects of a "Super Spreader" at Work

 

Some employers may find that certain employees seem to be more at risk of being identified as needing to self-isolate, for lots of different reasons relating to their personal circumstances. But to what extent can an employer ask them to change their behaviour to limit risk outside of work?

Employers should be aware that the workplace is one of the main ways people come into contact with each other, and that they remain responsible for their employees’ safety.

From a legal point of view, Cole recommends employers look at their absence management procedures, ensuring that their approach is balanced and fair. Bosses must make sure workers feel able to self- isolate and report, and don’t feel they’re going to be penalised for doing so.

To mitigate the effect of this, Cole suggests taking lessons from schools and businesses that have stayed open through the lockdown, in terms of how to manage teams and absence. He suggests work bubbles of smaller teams may help lessen the chance of spreading the virus at work.

 

Dealing with Contractors and Consultants

 

‘As lawyers, we can modify consultancy agreements to add clauses that state when a contractor is at work, they warrant that they do not have symptoms and that they have not been asked to self-isolate."

–Matthew Cole

Partner, Prettys employment law team

 

Particularly within the facilities management sector, dealing with self-employed contractors and consultants is a regular occurrence. Cole highlights that this cohort of the workforce has been particularly hit hard by the pandemic, with many not being about to make use of the job retention scheme in the same way that employers have.

If you regularly have third party staff coming in, Cole recommends that you communicate clearly with them to outline your expectations when it comes to reporting symptoms and following Test and Trace guidance.

Cole acknowledges the difficulty here: 

‘As lawyers, we can modify consultancy agreements to add clauses that state when a contractor is at work, they warrant that they do not have symptoms and that they have not been asked to self-isolate. This would mean by ignoring Test and Trace advice they would be in breach of contract. Whilst this may add some degree of protection, a lot is going to be based on trust.” 

Picture: A photograph of a smartphone, NHS lanyard and facial covering. The smartphone shows an NHS informational web page about Test and Trace. Image credit politicshome.com

Article written by Ella Tansley | Published 24 June 2020

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