Client Update: Isolation Rule Changes
From today (Monday 16 August 2021) employees who have been double vaccinated or who are aged 18 and under, will be able to continue to go to work even if they have been in close contact with someone who has tested positive for Covid-19 unless and until they test positive themselves.
Employees who have not been double vaccinated and who come into close contact with someone with the virus or, who have tested positive for Covid-19 (irrespective of their vaccination status) will still have a legal duty to self-isolate for at least 10 days unless they are otherwise exempt. If an employee does have a legal obligation to self-isolate they must inform you of this unless they are already working in the place where they are self-isolating (e.g. their home). Double-vaccinated employees and employees aged 18 and under will no longer have an obligation to tell their employer if they have been in close contact with someone who has tested positive for Covid-19 unless they become subject to the isolation requirement.
In terms of legal obligations, there is also no obligation on an employer to check if its employees are exempt from isolation: the duty to self-isolate is the employee’s own. It does however, remain an offence for employers to knowingly allow someone who ought to be self-isolating to attend work. Communicating your expectations to your employees in terms of close contact and isolation is therefore important. We would advise making it clear to your staff that if they come into work after receiving a notice to self-isolate, they are confirming that they are legally exempt from the duty to self-isolate and have taken a PCR test which is negative. Any employee who does come into work when they should be self-isolating, will be liable to face disciplinary action on grounds of serious or gross misconduct which may result in their dismissal.
The Timing of the Jabs
In order to avoid the requirement to self-isolate, an individual must have had their second Covid-19 vaccination at least two weeks before they came into close contact with the positive case.
The NHS will continue to notify people if they have been in close contact with anyone who has tested positive and will recommend that they take a PCR test for confirmation of infection status. Individuals who test negative will not have to take any further tests unless they develop symptoms. The NHS app will also advise the employee to self-isolate unless they are exempt under the new rules.
Can an employer ask an employee to disclose if they have been in close contact with someone with Covid-19?
Close contacts do not have a legal obligation to advise their employer of this fact unless they are subject to a requirement to self-isolate. Employers who want to know when their employees have been identified as a close contact of someone with the virus will need to introduce and communicate a policy requirement to this end. (Continue reading because there are some complex data protection considerations for employers to consider in this regard!)
Can an employer ask an employee if they have been vaccinated?
Yes, an employer can ask employee’s to share their vaccination status but they cannot force them to do so. The only exception to this will be in respect of care homes which will be subject to a mandatory requirement.
Data Protection: Ignore at your Peril
Employers who collect information about their employee’s vaccination status will be collecting “special category personal data” for the purposes of the application Data Protection legislation.
The ICO has published guidance on “Vaccination and Covid Status Checks” which states that: “before you decide to check people’s Covid status, you should be clear about what you are trying to achieve, and how asking people for their Covid status helps to achieve this”. In addition, “your reason for checking or recording people’s Covid status must be clear, necessary and transparent. If you cannot specify a use for this information and are recording it on a ‘just in case’ basis, or if you can achieve your goal without collecting this data, you are unlikely to be able to justify collecting it”.
When it comes to today’s legislative changes, the reason for collecting this information is arguably clear when you have staff on site as you will need to ensure that your staff are legally able to come to work after being in close contact with a person who has tested positive. There may also be wider Health & Safety justifications that you can rely on, too. Where staff are working from home, the situation differs and an employer will need to consider why they need the information. When staff are working from home and there is no requirement to check whether they can come on site, there won’t exist the same risks.
What evidence can we rely on to check employees’ Covid vaccination status?
In addition, unless you are legally required to check the vaccination status of your staff, you can also view their NHS vaccination appointment card.