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Self isolation rules changing: Employer’s Q&A

Posted by HR & Employment Team in HR and Employment Law

From today (Monday, 16 August 2021) those who have had both coronavirus vaccinations or are aged 18 and under can go into the workplace even if they are in close contact of a positive case.

From today do employees still have to tell the employer that they’ve been identified as a close contact of someone who has tested positive for coronavirus?

This depends on your workplace policy and whether they themselves have tested positive or developed symptoms. If they do test positive or have to isolate because they’ve been in contact with a positive case, they have a legal duty to self isolate for 10 days unless exempt.

If the employee does have a legal duty to self isolate, they have to inform the employer of this unless they are working in the place they are isolating from such as working from home.

Regulations provide that from today, anybody who has been double vaccinated or aged 18 or under does not have to self isolate after being identified as a close contact of a positive case unless they also test positive themselves.

Anyone who isn’t part of these exemptions will still continue to self isolate as before.

In order to qualify for these exemptions employees must have had their second vaccination at least two weeks before they came into close contact with the positive case.

For example if someone had the second dose on 10th August they would still need to isolate until 24 August if they’re identified as a close contact with a positive case during that time.

Test and trace are continuing to notify people who are close contacts with positive cases and will recommend that the contact has a PCR test to determine whether they are also positive for the virus.

If they then test negative they do not need to have any further PCR tests unless they develop symptoms.

Please note that close contacts do not have a legal duty to take a PCR test, and should they choose not to be tested. you will not know that they’ve been contacted and therefore could be asymptomatic unless you specifically ask them to tell you if they are identified as a contact of somebody with coronavirus.

Test and trace will also inform the contact that they must self isolate unless they are exempt under these new rules.

Does an employee who is self isolating before 16th August have to continue to self isolate beyond that date?

This depends on their circumstance. Anybody who is exempt under the new regulations is allowed to stop self isolating from midnight on Sunday 15th August. However if they are not exempt, they do have to continue to isolate for the full 10 days.

Do these new regulations also apply to those who are pinged through the test and trace app?

No. Anyone who was notified via the app is advised to isolate for 10 days however they are not legally required to do so.

It is expected the government will tweak the wording of these notifications to make clear that those who are notified don’t have to isolate if they are under 18 or have had both vaccinations. This would bring their advice in line with the new legalities.

Do I need to check that employees are exempt from the duty to self isolate?

This depends on the nature of your business and how much contact each staff member will have with others, whether your staff work with those who are clinically vulnerable etc.

There is no legal duty to check that employees are exempt, as the duty to isolate is on the individual. However, it is an offence to knowingly allow employees who should be self isolating to attend work.

Company directors and managers are also committing an offence if the breach of the employer is found to have been committed with their consent or acceptance through negligence.

Therefore we recommend you communicate your expectations to employees in regard to what happens if they’re identified as a close contact of someone who has tested positive for coronavirus.

There is still confusion around the new rules (specifically in regard to receiving a second vaccination two weeks before relying on exemptions to isolation) so there is a need to clearly communicate this to your employees. This point is particularly poignant if your business engages young workers, as many won’t have been offered a second vaccinations yet.

Make clear to your employees that if they attend the workplace after receiving notice to isolate, they are confirming that they are legally exempt from self isolation and have taken a PCR test which has come back negative. If employees do it and work when they should be self isolating, you will treat it as a serious disciplinary offence, which may result in their dismissal.

Can I ask employees to attend work if they are exempt from self isolation?

Yes. If they are exempt, they do not legally have to self isolate unless they themselves test positive for the virus.

Fully vaccinated employees are a lot less likely to catch coronavirus than partially vaccinated or on vaccinated employees, however, if your employees can work from home, it would be sensible to allow them to do so. This reduces the risk of catching coronavirus and spreading it around the workplace.

Can I expressly ask employees if they’ve been vaccinated?

Potentially, yes, however this would be collecting personal data and as it is also health data it is classed as special category data which affords even more protection. There are GDPR issues to consider.

The ICO has recently published guidance on vaccination and coronavirus status checks, which states that “before you decide to check people’s Covid status, you should be clear about what you are trying to achieve, and how peoples Covid status must be clear, necessary and transparent. If you cannot specify a use for this information and are recording it on a ‘just in case’ basis, or if you can achieve your goal without collecting this data, you are unlikely to be able to justify collecting it”.

In regards to the changes coming in on 16th August, the justification for collecting this information is clear where you have employees on site; you will need this information to make sure that employees are legally able to attend the workplace after being named a contact of a positive case. Moreover, you might need this information to protect other employees in the workplace.

Data protection rules are very often context driven, and the current ICO guidance recommends that you consider ‘the sector you operate in, the kind of work your employees do, and the health and safety risks in your setting.’

If employees are working from home, it will be difficult to justify collecting this information, you do not need to check whether they can come into work and stuff or they will not pose a health and safety risk.

The ICO guidance hasn’t yet been updated to reflect the new regulations on self isolation. Therefore, it is recommended that you keep checking official guidance, and take action if ICO advice changes.

What evidence can I rely on to check my employees covid vaccination status?

You should primarily rely on the official NHS Covid past verifier app, the online Covid past service, or by checking and employees NHS Covid pass later.

Also, unless there is a legal obligation to check vaccination status of your employees, you can also request to view the NHS vaccination appointment card.

What data protection issues do I need to consider as the employer?

You must only record data that you actually need and can justify collecting. Therefore you cannot collect personal data just in case. In regard to an employee’s vaccination status, The only information you will need to record is whether the employee has been fully vaccinated e.g. yes or no, and an indication of when their second vaccination took place, as this needs to be at least two weeks before you record this information. You don’t need to know what type of vaccine they receive, or the reasons why they chose not to be vaccinated.

It is also sensible to avoid allegations that you have collected any unnecessary data, you should ideally not collect everybody’s information on or just after 16th August, instead it should be collected when you need it e.g. when somebody calls in to ask whether they can attend the workplace, or when someone calls to ask if they need to self-isolate.

Whilst there is some complexity around asking about employees’ vaccination status, it is clear that you can require employees to notify you when they are required to self isolate. If they tell you they are required to self isolate, you can then ask about vaccination status.

In line with GDPR, you should ensure this information is recorded accurately, kept up-to-date, not kept for longer than necessary and only accessed by those who have a reason to access it.

Finally, it’s important to be transparent about how you are processing personal data. You should either add an addendum to your privacy notice or issue a standalone explanation, such as a letter, of how the data will be used in regards to self isolation and coronavirus vaccination status.

If you have any questions about this guidance or anything else HR related, feel free to contact us today on 0161 603 2156, for a friendly no-obligation chat around how we can help your business.

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