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Coronavirus - test and trace: employer issues - UK

  • United Kingdom
  • Coronavirus - Workforce issues
  • Employment law

11-06-2020

The English NHS test and trace service (“TTS”) aims to test anyone who develops symptoms of COVID-19 to find out if they have the virus, to trace recent close contacts of anyone who tests positive and, if necessary, notifies the symptomatic person and recent close contacts that they must self-isolate at home to help stop the spread of the virus. Similar Scottish, Northern Irish and Welsh services are also entering into operation.

This builds on the existing requirement to self-isolate for seven days (14 days for their household members) as soon as symptoms are experienced as follows:

If a person experiences COVID-19 symptoms and self-isolates:

  • they should order a test
  • before the result is known, the TTS will encourage them to alert their employer (see further below). The Prime Minister has committed to a 24 hour test turnaround by end June
  • if the test is negative, there is no longer a need to self-isolate
  • if the test is positive, in addition to continuing to self-isolate, the TTS will contact the individual to request names and contact details of recent close contacts (see below re ‘close contacts’) and information on places visited. The TTS states that personal data “will be held in strict confidence and will be kept and used only in line with data protection laws”
  • the NHSX coronavirus app will supplement this process (see below), when available
  • the TTS will decide whether to contact those who have been in close contact with the person testing positive, without revealing their identity

If a person is contacted by TTS and told to self-isolate:

  • those contacted by TTS will be told to self-isolate for 14 days from the point of most recent contact with the person who has tested positive (household members do not need to self-isolate in this situation unless the person is also experiencing symptoms)
  • if the person contacted has no symptoms, they cannot seek a test
  • if they have symptoms, they are tested and the steps above are repeated

There is separate guidance for health and care workers on testing and when to return to work.

TTS is not a legal requirement and no sanctions currently apply. This may change depending on peoples’ behaviour. However, employers and employees who knowingly disregard self-isolation instructions, for example, where the employee continues to attend the workplace during self-isolation, risk health and safety offences with potential sanctions of employee fines or imprisonment and employer fines. Other civil and criminal proceedings may apply but appear unlikely in practice.

Coronavirus - what is ‘close contact’?

The TTS defines close contact as follows:

“We are interested in in the 48 hours before you developed symptoms and the time since you developed symptoms. Close contact means:

  • having face-to-face contact with someone (less than one metre away)
  • spending more than 15 minutes within two metres of someone
  • travelling in a car or other small vehicle with someone (even on a short journey) or close to them on a plane”

The NHSX test and trace app

While the final details are yet to be published, it appears that the NHSX contact tracing app (“app”) enables digital contact-tracing on a large scale and where an infected person may not know the contact details of those who they have been in close contact with (such as on public transport). Further information is available here.

Once it has been downloaded on someone’s phone, the app uses Bluetooth to connect with other phones nearby that also have the app downloaded. The app knows how close it has been to other phones and for how long, and can therefore build a picture of which phone owners are most at risk. If the user develops coronavirus symptoms, then those other app users who have been in significant contact with the user will receive an alert from the app and it may ask them to self-isolate (based on a ‘contact risk model’ developed by NHS). The other users will not be told who reported symptoms or when the contact occurred.

Coronavirus - TTS and the workplace: frequently asked questions

While the TTS will be welcomed by employers, given that it reduces the risk of workplace infections, it will result in some non-symptomatic employees being told to stay at home to self-isolate and it also poses some novel issues. For example:

How will TTS impact the workplace?

Employers should expect the following employees to be told to self-isolate if they:

  • have coronavirus symptoms and are awaiting a test result
  • have tested positive for coronavirus
  • are a member of the same household as someone who has symptoms or has tested positive for coronavirus
  • have been in close recent contact with someone who has tested positive and received a TTS notification to self-isolate

Employer and employee TTS guidance has also been produced.

Employees told to self-isolate will receive a TTS notification that can be used as evidence for their employers.

Employers are expected to support self-isolating employees and not require them to attend work.

Where the employee has no symptoms but is instructed by TTS to self-isolate for 14 days and cannot work from home, the guidance states that employees may be eligible for statutory sick pay. It notes that some employers may, instead, pay company sick pay or full pay for the duration.

The employer’s approach should be considered in the context of what is expected according to the contract of employment. We expect that many employers will wish to encourage employees to stay away from the workplace during the period when they should be self-isolating, to reduce the risk of infection, and may decide to maintain full pay in order to achieve this. That said, employers might be less supportive if employees are required to self-isolate multiple times, or if the incidence of self-isolation within the workforce is substantial.

What should happen if employees develop symptoms of COVID-19?

Under the guidance, those employees who have developed symptoms of COVID-19, have ordered a test and are self-isolating away from the workplace - i.e. before infection is confirmed and any resulting TTS notifications to their close contacts - will be encouraged to alert the people that they have had close contact with in the 48 hours before symptom onset. If any of those close contacts are co-workers, the guidance states that the symptomatic employee “may wish to (but is not obliged to) ask their employer to alert those co-workers”. The guidance explains that “At this stage, those close contacts should not self-isolate, but they:

  • must avoid individuals who are at high-risk of contracting COVID-19, for example, because they have pre-existing medical conditions, such as respiratory issues
  • must take extra care in practising social distancing and good hygiene and in watching out for symptoms.”

If alerted by an employee before infection is confirmed, employers should ensure that the employee stays away from the workplace in accordance with self-isolation, as outlined above.

Can employers require employees to report if they have been told to self-isolate by TTS?

Employees who receive a self-isolation notification are advised to notify their employer of the notification and inform their employer that as a consequence they are not able to attend the workplace.

Self-isolation is not mandatory, currently, and some employees may disregard the notification on financial or other grounds. It is an appropriate risk mitigation measure to require employees to inform their employer of a TTS self-isolation notification as a health and safety requirement. Employers have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees and employees also have legal responsibilities: to take reasonable care for their own and others’ health and safety and to cooperate with their employer to help them meet their duties. When responding to employees who fail to comply with any such instruction, employers must act reasonably, fairly and in a non-discriminatory manner.

To comply with data protection laws, employers must ensure that their collection and further use of such information (and the lawful reason for asking for it) is set out in existing employee notices, or that they are updated, if not.

How should employers respond to workplace contact triggering TTS self-isolation?

Reflecting the health and safety employer duties outlines above, where contact within the workplace triggers TTS notifications the employer should act promptly to investigate the reasons, review its COVID-19 risk assessments and consider what further mitigating actions may be necessary, as appropriate, to reduce the risk of infection. Local authorities and Public health England will provide employers with support to help manage the outbreak of multiple cases in a workplace. A RIDDOR notification may also be necessary (see below).

Must employers notify the HSE if there is a workplace link to TTS notifications?

The RIDDOR notification process is triggered when there is ‘reasonable evidence’ of COVID-19 infection from a workplace. This may not arise in the context of a TTS notification but it will depend on the facts. For example, employee A is infected outside work and then triggers a TTS notification to employees B, C and D who work together. The notification in itself is not indicative of workplace H&S processes but the circumstances should be reviewed as a precaution.

How should employers respond if a worker receives TTS notifications on multiple occasions?

Some employees may be asked to self-isolate, even though they experience no symptoms, on multiple occasions. Where workplace contact is not a trigger (see above), employees should be encouraged to consider why this has happened. For example, whether it relates indirectly to their work, such as commuting on public transport, or their social lives and how better social distancing may be supported, including alternative transport arrangements or changes to working hours.

Will employers need to disclose employee contact details to the TTS?

It appears that the TTS involves communication and notification with the person testing positive with COVID-19 and their close contacts – the employer is not asked to provide contact details. However, the symptomatic person is encouraged to tell their employer at the earliest opportunity so that close contact colleagues can be informed. A different process applies if the close contact took place in a health or care setting, a prison or other secure establishment, a school for children with special needs or any setting where there is a risk of a local outbreak, including the involvement of local public health officials.

Will employees need to disclose colleagues’ contact details to the TTS?

The TTS will expect employees testing positive for COVID-19 to volunteer the contact details (email addresses or telephone numbers if known) of any close contact colleagues, if applicable. The Government states that “the information you give will be handled in strict confidence and will only be kept and used in line with data protection laws”.

Can employers mandate employees to use the NHSX app on company phones?

The app is a health and safety risk mitigation measure and employers may wish to encourage employees to download and use the app on health and wellbeing grounds. Reviewing the role of the app in the context of the employer’s health and safety COVID-19 risk assessment, as well as conducting a privacy impact assessment to comply with GDPR obligations, would guide the employer as to whether it would be reasonable to make downloading the app compulsory. In practice, mandating the download may have limited practical impact as the employee could still choose not to download it, unless it is auto-installed, or use it.

How will the NHSX app, when released, distinguish between different workplace contacts?

When the app is released, employers will need to understand how it will manage TTS notifications where mobile phones are within close contact, but social distancing or risk mitigation measures are in force. For example, where mobiles are left in close proximity during working hours in employee lockers, where employees work in close contact but are protected by PPE and how this will work in the health settings where employees are attending to COVID-19 positive patients. We await further clarification.