Written by Mary Lawrence, Partner, Osborne Clarke
Employers will need to understand and carefully manage their role in the test and trace process, and the potential impact on their business, taking on board the government guidance on how it will work and the accompanying workplace guidance.
The government has launched the NHS Test and Trace service (T&T) to identify the “close contacts” of anyone who tests positive for COVID-19. Those identified will receive a formal notification to self-isolate for 14 days even if they are asymptomatic or subsequently test negative.
With many employers adopting split shifts or allocating employees to teams in their return to work plans, further unplanned absences have the potential to be particularly disruptive.
T&T supplements existing risk mitigation measures
Test & Trace should be used in conjunction with the existing health and safety guidance for an employer’s sector. Employers do not now have a free rein to bring all employees back into the workplace – “every reasonable effort to enable working from home” should be considered “as a first option.”
Remind employees of their personal responsibilities
The government guidance on T&T emphasises the importance of an employee notifying their employer immediately (and self-isolating) if they display any of the recognised COVID-19 symptoms: high temperature, new continuous cough or a loss or change in sense of smell or taste.
From now, this also includes if they have been “traced” as having had contact with someone who has tested positive. Employers must then play their part in supporting employees in not coming into the workplace for the appropriate self-isolation period and ensuring that they either work from home or take annual leave (and are paid), or do not work and are paid statutory sick pay (SSP).
Talk to your employees now about T&T
Employers should talk to employees about their obligations under T&T. A supporting policy will be helpful.
- Be clear who is a “close contact” and where an employee reports in with symptoms, identify if there is anyone who falls into this category so appropriate steps can be implemented as necessary
- Provide the employee with the name of an individual in the company who can provide T&T operatives with any information they need, or who the employee can turn to for support
- Remind employees to inform the company immediately if their test result is positive, allowing the company to pre-empt contact from T&T and subsequent notifications which will potentially be made to co-workers from T&T
- Confirm that if employees are asked to provide details of co-workers directly by T&T, they should not share personal details of co-workers, without first speaking to their employer, given the potential employment law and GDPR repercussions
Encouraging employees to identify a close contact who has become such due to a breach of workplace social distancing or related health and safety rules will need to be handled with care. Employees who refrain from doing so through fear of repercussions may be putting the workplace at risk of infection and ultimately a public health inspection.
What is a “close contact” for T&T?
The guidance defines a “close contact” as being those who:
- you have had face to face contact with (less than one metre away)
- you have spent more than 15 minutes within two metres of
- you have travelled with in a car or other vehicle
T&T will ask an individual “if you work in – or have recently visited – a setting with other people”. Since most employers will be trying to maintain two-metre social distancing, it may well mean that other employees will not have to self-isolate. However, where the nature of the work means that either the 2 metres have been accidentally breached or where a tolerance level exists (for example, a two-man job where face-to-face contact for a short time period is unavoidable), then these people will fall within this definition.
Pre-warning “close contacts”
Many employers have put in place processes to notify other employees where a colleague has tested positive or is displaying COVID-19 symptoms, as part of their health and safety response. Test & Trace guidance suggests individuals pre-warn close contacts that they may receive a formal notification to self-isolate (where the individual subsequently tests positive) and “where these are co-workers” the guidance suggests that they “may ask their employer to do so”.
Conversations with co-workers will need to be handled sensitively, particularly against the backdrop of potentially 14 days’ automatic self-isolation. Where an employee subsequently tests positive, the potential for personal recriminations and potential discrimination (for example, where the symptomatic employee is BAME) may heighten.
Pending the test result, employers will also need to ensure they take all recommended steps to protect workers and other people who may be affected by their business, including agency workers, contractors, volunteers, customers, suppliers and visitors. There is no legal obligation for close contacts at this point to self-isolate unless they have been in contact with someone else who has tested positive. Maintaining confidence in workplace health and safety and protecting those most at risk will be important.
Providing details of co-workers to T&T
A contract tracer may contact an employer directly and request information, such as contact details of those in the workforce who are determined to be close contacts. While the guidance makes clear that any information given “will be handled in strict confidence and will only be kept an used in line with data protection laws”, employers will need to ensure that they comply with their employment and GDPR obligations towards co-workers before sharing any personal data for these purposes. Privacy notices will require amendment to cover this scenario.
Helping workers notified by T&T to self-isolate
Where workers receive a formal notification from T&T to self-isolate, the workplace guidance provides that employers should:
- not ask these workers to attend the workplace
- continue to communicate with those workers and provide support
- allow employees to work from home if they remain well and it is practicable to so – is alternative work available?
- pay Statutory Sick Pay where home working is not possible (the SSP regulations have been amended to capture these workers). An employee should be given the option to use their paid leave days if they prefer.
The guidance makes clear that the T&T notification can be used as evidence for SSP purposes.
Minimising the risk of COVID-19
Employers should proactively take steps to check that their existing workplace measures are adequate and that they have a process for identifying any hotspots within the company. Multiple cases of coronavirus in a workplace may lead to T&T escalating the situation to the local authority, the Health and Safety Executive or Public Health England.
It is important that managers are clear on who to contact for guidance where any requests or concerns from staff are raised. The guidance directs “workers who think the contacts that have triggered these notifications are workplace contacts” to “ask their employer to consider what further mitigating actions could be taken to reduce the risk of COVID-19.”
Aside from any legal claims, employers may also face employee relations issues and associated reputational concerns where potential breaches of employment or health and safety obligations are raised and not adequately dealt with.
The T&T scheme raises significant considerations for employers, already navigating the new COVID-19 secure health and safety guidelines for re-opening their workplaces, as well as managing the current economic challenges.
The current service is distinct from the much-publicised NHS COVID-19 app currently being trialled. However, many businesses are also considering whether it will be a “reasonable instruction” to require employees to download the app when it is officially launched, as part of their fight against the spread of COVID-19.
With employee relations and protecting the employer brand critical, employers will need to carefully consider the steps they take in responding to Test & Trace. As the guidance emphasises: “although this may seem disruptive for businesses, it is less disruptive than an outbreak of COVID-19 in the workplace will be, and far less disruptive than periods in lockdown.”