Whether the NHS test and trace service has been rushed out to get Dominic Cummings off the front pages or not, employers need to review the new guidance (link below) and consider how this might affect their internal policies and procedures. This note is intended to be a summary of the service and the key considerations for employers.
The NHS test and trace service gets in touch with anyone who has had a positive test result to help them share information about any close recent contacts they have had and, where necessary, notifies them they need to self-isolate to help stop the spread of the virus. This is intended to be a central part of the government’s coronavirus recovery strategy and, it is hoped, will act as an early warning system if COVID-19 activity is increasing locally, regionally or nationally.
Whilst the service launched yesterday we are told to expect kinks! Of course the government has been keen throughout the crisis to emphasise that employers need to operate “flexibly within a framework”. This said, clear and workable internal policies are procedures are key to supporting your operations, underlying culture and productivity.
Actions for Employers
Whilst we recommend that you review the guidance, employers should now consider:
• Updating their sickness absence procedures to make clear what and how workers need to report symptoms and/or the requirement to self-isolate in accordance with the test and trace scheme. Workers should be encouraged to be open an honest but also warned of the possible consequences in the event they fail to comply. Whilst the requirement to self-isolate is only advisory, employers need to consider whether a breach of internal procedures should be classified misconduct or even gross misconduct?
• The guidance encourages employers to help workers heed any notifications to self-isolate and supporting them when in isolation. If workers are required to isolate, employers should plan whether they can facilitate working from home. If the employee’s role is not suited to home working, the guidance suggests employers might look to find alternative work that can be completed at home during the period of self-isolation. Employers should set clear guidelines in relation to working from home that address H&S, GDPR, confidentiality etc.
• Review company sick pay schemes and communicate entitlements to staff. If the scheme is genuinely discretionary, employers will need to balance the competing risks; namely the risk of presentism on one hand and the financial burden of employees having to isolate on various separate occasions on the other. Note that employers will need a copy of the isolation notification if they are going to claim a rebate for Statutory Sick Pay. If you need any further guidance on claiming back SSP please get in touch.
• The guidance highlights that an employee can ask to take their paid holiday for the time they’re off work, entitling them to full pay for the duration of their leave, as opposed to Statutory Sick Pay, if they choose. Employers should consider how this might be facilitated and the process for requesting / taking holiday.
• Employers should also consider whether the employee might be eligible under the Coronavirus Job Retention Scheme (albeit they would need to be furloughed for 3 weeks whereas isolation is only for 14 days). If so, how might this form part the plan to manage the costs arising from isolation.
• Consider who should be responsible for monitoring and reporting internally on notifications? If a pattern of a notifications start to occur in the workplace, what steps will be taken? For example, if a pattern appears it would be good practice to review your COVID-19 risk assessment and take any further mitigating actions to reduce the risk of infection.
• Employers should also consider updating their internal risk management procedures to make clear who, how and when multiple cases of coronavirus should be reported to the local authority. In certain cases an outbreak control team from either the local authority or Public Health England will, if necessary, be assigned to help manage the outbreak.
Please note that you must continue to follow health and safety workplace guidance for your sector and the NHS test and trace service does not change the existing guidance about working from home wherever possible. This includes creating a new COVID-19 risk assessment if you have not already done so.
We have been helping lots of employers navigate their way through the government’s guidance notes, which has changed frequently and contain lots of (perhaps unintended) bear traps! If you need any help or would like further information about how we can help support your business, or advice generally about managing your workforce during these unprecedented times, please do contact a member of our employment law team.
This is only intended to be a summary and not specific legal advice.
Selene Holden ([email protected] ~ 01284 717436), Greg Jones ([email protected] ~ 01284 717446) or Angharad Ellis Owen ([email protected] ~ 01284 717453).
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