Coronavirus – contact tracing in Northern Ireland: employer issues

• Northern Ireland
• Ireland

• Coronavirus - Country overview
• Coronavirus - Return to work
• Employment law

12-06-2020

On Monday 27 April 2020, the Northern Ireland Public Health Agency (PHA) commenced a pilot programme of contact tracing which is helping to inform the planned roll-out of a Northern Ireland-wide contact tracing programme, as requested by the Department of Health. Since then the track and trace programme has continued to expand in Northern Ireland.

The PHA contact tracing programme aims to identify people who have been in close contact with someone who has tested positive for COVID-19, informing them of this, and providing them with information on the symptoms to be aware of, what to do if symptoms develop, and if they need to self-isolate or get tested. This is similar to English, Welsh and Scottish services which are now also in operation.

In recent weeks the PHA have ramped up their approach to contact tracing and the programme is now in full service in Northern Ireland. The PHA have published the ‘Test, Trace and Protect’ strategy, which sets out the PHA’s approach to contact tracing in the immediate and long-term.

This strategy builds on the 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

• 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 PHA will contact the individual to request names and contact details of recent close contacts (see ‘close contacts’ below) and information on places visited. The PHA states that personal data is confidential, will not be shared and will be kept and used only in line with data protection laws

• the PHA 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 the PHA and advised to self-isolate:

• those contacted by the PHA may be advised to self-isolate for 14 days from the point of most recent contact with the person who has tested positive

• if the person contacted has no symptoms, they cannot seek a test whilst they have no symptoms

• if they have symptoms, they are encouraged to get tested and the steps above are repeated

There is separate guidance for HSC staff, healthcare workers and care providers on testing and when to return to work.

Taking part in contact tracing is not currently a legal requirement and no sanctions currently apply in Northern Ireland if an individual does not adhere to the approach above. This may of course change depending on peoples’ behaviour.

Coronavirus - what are ‘close contacts’?

The PHA defines close contacts as:

• people you spend 15 minutes or more with at a distance of less than two metres; and

• people you have direct contact with - such as sexual partners, household members or people with whom you have had face-to-face conversations at a distance of less than one metre.

The contact must have taken place between two days before and up to seven days after symptoms appeared.

Digital platforms

The PHA have focused on providing a telephone-based contact-tracing service. Unlike the test and trace system in England, the PHA have not, at this time, introduced an app to assist with contact tracing. The PHA has however confirmed that they will be considering whether or not to introduce other digital systems to support contact tracing going forward.

Coronavirus – Contact tracing and the workplace: frequently asked questions

While contact tracing 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 contact tracing 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 PHA notification to self-isolate

Employees who have been advised to self-isolate by the PHA will not be given a formal notice by the PHA but can visit NHS 111 online to obtain a note for their employer. Employers are expected to support self-isolating employees and not require them to attend work.

Where the employee has no symptoms but is advised by the PHA to self-isolate for 14 days and cannot work from home, they will be eligible to receive statutory sick pay. Some employers may, instead, pay company sick pay or full pay for the duration of any such period of isolation.

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?

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

If the employee tests positive for Covid-19 they will be encouraged to disclose individuals who they have been in close contact with. This may include co-workers, who may in turn be advised to self-isolate depending on the circumstances.

On notification that an employee has symptoms employers should consider the potential impact on the business if a number of employees be asked to self-isolate and consider their resourcing needs should this happen.

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

Employees who are requested to self-isolate 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 PHA self-isolation request 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. Employers should inform their employees that they are required to inform the employer if they are contacted by the PHA. 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 PHA self-isolation?

Reflecting the health and safety employer duties outlined above, where contact within the workplace triggers PHA 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 the PHA 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 HSENI if there is a workplace link to PHA 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 PHA notification but it will depend on the facts. For example, employee A is infected outside work and then triggers a PHA 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 PHA 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 PHA?

It appears that the PHA contact tracing programme 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.

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 PHA?

The PHA 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 guidance indicates that “the information you give will be handled in strict confidence and will only be kept and used in line with data protection laws”.

Cross border co-operation on the island of Ireland

Northern Ireland, as part of the United Kingdom, is in a unique position in that it shares a land border with the Republic of Ireland. This is an important factor when considering the spread of infectious diseases and therefore contact tracing. The PHA have explained that there are well-established systems in place which enable cross border co-operation with the Republic of Ireland on contact tracing and management of infectious disease. They are also working at pace to develop new, more efficient ways of working collaboratively to reduce the spread of COVID-19 across the island of Ireland, and help protect cross-border travellers.

For further information, please contact:

Lisa Bryson, Partner in our Employment & Immigration Department - lisabryson@eversheds-sutherland.ie

Amy Collins, Solicitor in our Employment & Immigration Department - amycollins@eversheds-sutherland.ie