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Test and trace – what does this mean for employers?

The test and trace service is now in operation as part of the government’s plans to reduce lock down restrictions but how will this impact employers’ plans to return to work?

Many employers are currently facing the challenge of bringing their workforce safely back to work and implementing social distancing measures in difficult circumstances. In addition to this, on May 2020, the NHS test and trace service was introduced in England in order to test those with symptoms of COVID-19 and contact people with whom they have been in contact. (A similar test and protect service was also launched in Scotland on the same date whereas Northern Ireland has been operating a contact tracing system since 27 April 2020 with Wales introducing the test, trace, protect system on 1 June 2020). As such, employers throughout the UK may now have to deal with unplanned absences which could cause disruption to the business.

How will the service work?

The service in England works in the same way as in the other locations within the UK. It provides testing for any person who has COVID-19 symptoms and will then get in touch with anyone who has been in close contact with that person should the test result be positive. Anyone who is contacted will be advised to self-isolate for 14 days in order to prevent the spread of the virus even if they are not showing symptoms. This is currently voluntary rather than enforced by criminal fines but could become mandatory if too many people fail to comply.

This expands the category of people who may be required to self-isolate and could have a detrimental impact on absence levels within organisations at a time when many businesses are trying to restart. While some employers will be able to support working from home, for others, where an employee who has been in the workplace tests positive this could potentially mean entire teams of people being told they cannot go to work for 14 days.

If employees self-isolate as advised by the service, they will be entitled to receive statutory sick pay thanks to amendment regulations which came into force on 28 May 2020. However, statutory sick pay is only recoverable for those employers with less than 250 PAYE employees (on or before 28 February 2020) where an employee is unable to work because of coronavirus and only in respect of two weeks’ entitlement. The notification from the service will be sufficient evidence of sickness for this purpose. However, the level of statutory sick pay may deter some employees from declaring a notification under the service at all. Whether those isolating would be entitled to contractual sick pay will depend on the wording of their contracts of employment, but it is likely that if they are not actually ill the wording may preclude them from receiving any such sick pay. Employers may decide to exercise their discretion and pay contractual sick pay in any event to encourage employees to isolate and reduce the risk of infecting others in the workplace.

What should employers be doing?

Government guidance has urged employers in England to encourage workers to heed notifications to self-isolate to counteract the risk of unwanted presenteeism and support them while in isolation. For example, employers could consider:

  • clear communication of what is expected should anyone be contacted by the service;
  • update policies so that staff are aware they must inform their manager if they have received a notification;
  • consider what level of sick pay is available (i.e. statutory sick pay, contractual sick pay, full pay);
  • encourage working from home where this is feasible, including finding alternative work which can be completed at home during the period of self-isolation.

Employees should also be given the option to take holiday rather than sick leave, this might be preferential for those concerned with their level of income.

Other important points to consider include:

  • the existing guidance on working from home where possible remains unchanged;
  • employees who have developed symptoms can (but are not obliged to) ask their employer to inform colleagues that have been in close contact with them, in which case those colleagues are not required to self-isolate but should avoid contact with high-risk individuals and take extra care in practising social distancing (but employers should be mindful of not disclosing any personal data in breach of the GDPR);
  • if not already implemented, employers should amend COVID-19 risk assessments to prepare for the fact that someone in the workplace may receive a notification under the Service;
  • support for employers with a workplace outbreak will be provided by the relevant local authority and/or Public Health England;
  • employers should continue to protect other people who may be impacted such as agency workers, contractors, volunteers, customers, suppliers and other visitors.

While plans are already in progress for returning to work under social distancing arrangements, one-way circuits around the office and additional hygiene stations, employers may also want to consider reviewing business continuity plans and contingencies for increased levels of absence or potential workplace outbreaks.

Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

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