Covid-19, the employer and the self-isolating member of staff
We know that if we have Covid-19, we need to protect those around us. Whilst that is essential and mandatory, so too is self-isolation for those who have been in close contact with someone who has Covid-19; but what should workers and their employers do?
In late September 2020 the Health Protection (Coronavirus, Restrictions) (Self-Isolation) Regulations came into force. These Regulations made it mandatory to self-isolate where someone tests positive for Covid-19, or if they have been a close contact with someone who has Covid-19. These Regulations, with some exceptions, essentially require the individual to remain at home for 10-14 days as well as inform their employer of their mandatory self-isolation. They also prohibit an employer (or hirer) of a worker who is required to self-isolate from attending work (though they can work from home).
These Regulations make it a criminal offence, with fines of up to £10,000, to fail to self-isolate and for an employer to permit an employee to attend work (away from home).
Practically, what does an employee and employer have to do?
An employee who has tested positive for Covid-19 will most likely be contacted by NHS Test and Trace. They will be informed how long they should self-isolate for. The same will apply to close contacts of someone who has tested positive for Covid-19 and are asked to self-isolate by NHS Test and Trace.
The employee should stay home and inform their employer of their requirement to self-isolate as soon as possible and before they next go to work. They should give their employer the dates of their isolation and provide them with an isolation note (https://111.nhs.uk/isolation-note/). This isolation note reduces the burden on the NHS in preparing formal fit notes and the employer can instead use this as evidence of eligibility for Statutory Sick Pay (SSP).
Once notified and if the employee is well and able, the employer should allow the employee to work from home. Providing alternative work which can be done from home is permitted and that may enable the worker to keep being paid in full. Those suffering symptoms of Covid-19 will be eligible for SSP and contractual sick pay where appropriate.
Merely being a close contact of someone with Covid-19 is not itself sickness and sick pay would not normally be due, but those employees required to self-isolate by NHS Test and Trace are now treated as having a “deemed” sickness for the purposes of SSP. The employer should therefore process the isolation note as evidence of that deemed sickness, ensuring the employee’s eligibility for SSP. The isolation note will have a 16 digit reference number which the employer should check (https://111.nhs.uk/isolation-note/check) and then process.
Some employers of key workers are being provided with additional public funding to pay all self-isolating workers in full, but this is far from universal. Self-isolation as a close contact does not necessarily entitle an employee to contractual sick pay unless that is part of the employer’s sick pay policy/terms. The employee will though remain eligible for SSP.
In some cases, those with Covid-19 or self-isolating may be eligible to be furloughed under the newly extended Coronavirus Job Retention Scheme.
Currently, we understand that repeated infection with the Covid-19 virus is possible. There is no infection limitation in the Self-Isolation Regulations. Even if it is a repeated infection, it would still be an offence not to self-isolate or for the employer to require or permit the Covid-19 positive employee to work away from home.
Similarly, there is no limitation on the occasions of close contact. The nature of being a close contact means that there is the possibility of repeated exposures. In each case, NHS Test and Trace can require mandatory self-isolation. With the isolation note, employees will remain eligible for SSP, even if they are not entitled to contractual sick pay.