COVID-19 Test and Trace – FAQs for Employers

Posted on: June 10th, 2020

The NHS test and trace service was launched last week to help trace recent ‘close contacts’ of anyone who tests positive for coronavirus. Those identified as a close contact will receive a formal notification to self-isolate for 14 days, even if they are not showing any symptoms, to avoid unknowingly spreading the virus.

We’ve set out below our answers to a number of queries we’ve already received from employers as to how the service will impact their workforce.

What do we need to pay an employee who is self-isolating because they have been notified by the NHS test and trace service?

Self-isolation means staying at home and not leaving at any time. If the individual remains well enough and it is practicable to do so, employees can continue to work from home during self-isolation.  If they are able to work from home, they should be paid their usual pay for time spent working.

For those who cannot work from home, the laws on statutory sick pay (SSP) have been updated to cover those individuals who have been instructed to self-isolate via the test and trace service. Employees unable to work will therefore be entitled to SSP for the full 14 day self-isolation period, regardless of whether they have COVID-19 symptoms.

Employees who are notified to self-isolate may also be entitled to enhanced company sick pay, depending upon the rules of the relevant company scheme.

Will employees have evidence that they are self-isolating? Can we ask them for this?

Workers who are self-isolating because they have symptoms of coronavirus, or live with someone who has symptoms of coronavirus, can get an isolation note through NHS111 online.

The NHS test and trace service will provide a notification to employees that can be used as evidence of an instruction to self-isolate. Workers are encouraged to share this evidence with employers as soon as possible.

For SSP purposes, employees are required to provide proof of their sickness absence if they are off work for more than 7 days in a row (which would apply in the case of the 14 day self-isolation period). The notification from the test and trace service will be sufficient proof, so employers can ask their employees to see this.

Could an employee be required to self-isolate under this service on more than one occasion?

Yes. The government guidance confirms that workers must self-isolate whenever they receive a notification from the NHS test and trace service asking them to do so. This may happen on multiple occasions and, if it does so, individuals need to consider how they can better follow social distancing requirements to stop receiving further notifications.

Could we furlough someone because they are self-isolating after being traced?

This is unlikely to be possible because 1) the minimum period that an individual must be furloughed for an employer to claim under the Coronavirus Job Retention Scheme (CJRS) is three weeks, whilst the self-isolation period is only 14 days, and 2) the CJRS will close to new entrants on 30 June, meaning the final date by which an employer can furlough an employee for the first time will be 10 June.

What about putting them on holiday?

The government guidance currently states that, if self-isolating employees cannot work from home, employers ‘must…give them the option to use their paid leave days if they prefer’. It is unclear what legal provision the government are relying upon in telling employers they ‘must’ give employees this option, and our view is that this a recommendation only.

However, employees can certainly take holiday during a self-isolation period and, if an employee requests to do so, provided they have enough holiday remaining, employers would be wise to allow this to assist employees who may be having financial concerns and also to avoid a build-up of accrued but untaken holiday later down the line.

Can we provide employees’ details to the NHS if we are contacted by the NHS test and trace service, following a staff member’s positive test?

It is not clear from the guidance that the test and trace teams will contact employers directly for the details of a COVID-19 sufferer’s close contacts at work. If they do, employers are likely to have a legal basis under data protection law to share this information, given their legal obligations (in respect of employer health and safety obligations) and the legitimate interests in preventing the spread of COVID-19.

However, before disclosing the information, employers should attempt to verify that it is being contacted by genuine NHS test and trace staff. Further, employers should bear in mind the general principle of data minimisation, and should limit the data it discloses to the NHS team to what is absolutely necessary (i.e. name and contact details only).

Can we tell an employee’s colleagues if they have tested positive for COVID-19 or are self-isolating after being traced?

The Information Commissioner’s Office (ICO) guidance is helpful here. It confirms:

“You should keep staff informed about potential or confirmed COVID-19 cases amongst their colleagues. However, you should avoid naming individuals if possible, and you should not provide more information than is necessary.

As an employer, it’s your duty to ensure the health and safety of all your employees. Data protection doesn’t prevent you doing this, and should not be viewed as a barrier to sharing data with authorities for public health purposes, or the police where necessary and proportionate. … You also need to take into account the risks to the wider public which may be caused by failing to share information, and take a proportionate and sensible approach.”