The pinging pandemic

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Has your business felt the effects of the so-called ‘pingdemic’?

In recent weeks the number of staff being advised to self-isolate as a result of potential exposure to someone testing positive for COVID-19 has been on the rise.

Notifications come via reporting of a positive result and then subsequent contact tracing by NHS Test and Trace or as a notification or ‘ping’ on the NHS COVID-19 app (the app) which detects potential exposure based on proximity. This proximity was based on close contact five days prior to a positive test but has recently been reduced to two.

The number of staff being advised to self-isolate via either of these two routes has caused some very real effects for British business – there’s been cancellations on public transport, shops and supermarkets have had to close or reduce hours, while a shortage of drivers has raised fears over the potential for gaps on the shelves.

Understandably, employers and employees alike have been left a little confused when it comes to self-isolation and the differences between a call from Test and Trace or a notification on the app. Here we attempt to clear things up:

What’s the difference between a Test and Trace notification and an app notification?

When an employee is asked to self-isolate by NHS Test and Trace it is a legal requirement. The employee must self-isolate for the period advised, usually 10 days. An employer cannot ask employees notified to self-isolate to attend work as this would require the employee to break the law.

When an employee is notified by the app that they have been in close proximity to someone who has since tested positive for COVID-19 they are advised to self-isolate. This notification is guidance and thus the individual can exercise discretion.

What does an employer need to do when staff are advised to self-isolate?

As an employer you have a responsibility for health and safety in the workplace. You should regularly review your COVID-19 Workplace Risk Assessment which details how you will ensure your workplace is COVID-secure and document requirements around self-isolation.

Employers are entitled to ask for ‘reasonable evidence’ of someone’s incapacity to work. On this basis, employees should let you know if they have been asked to self-isolate and you should ask for some evidence of this notification.

NHS Test and Trace will provide the employee with such evidence to prove that the employee has been told to self-isolate and for how long. The NHS 111 service can also provide an isolation note if required. Employers can also request sight of any notification alert from the app.

What do I need to do if an employee advised to isolate is needed in work?

If an employee has been advised to self-isolate via NHS Test and Trace this is a legal requirement, and the employee must comply. An employer cannot require the employee to attend work.

When an employee has been advised to self-isolate via a ‘ping’ on the app but you require the employee to come into work you should undertake a risk assessment in line with your health and safety obligations. The aim is to assess whether you can mitigate the heightened risk of transmission. Questions to consider might include whether the member of staff can be isolated from colleagues (particularly those who may be vulnerable) or whether personal protective equipment (PPE) might be used. It’s important to consider the views of employees and to take these into consideration when determining a course of action that can cause a real impact on health and wellbeing, such as increased anxiety.

Are there exemptions when it comes to following self-isolation advice?

The Government has produced a list of 16 ‘critical’ sectors which will operate until 16 August 2021 where workers who have received two doses of a COVID-19 vaccination will not need to self-isolate if they are contacted by Test and Trace or notified by the app. After 16 August double vaccinated employees will not have to self-isolate but will be encouraged to take a PCR test.

Do you have to pay employees who are self-isolating?

Employees who have been officially notified by the Test and Trace service or a local authority contact tracing team that they must self-isolate because they have been in close contact with someone who has tested positive for COVID-19 are legally required to self-isolate for 10 days and are entitled to SSP (providing they meet the eligibility rules). Small and medium employers (with fewer than 250 employees) may be able to reclaim their costs for SSP.

For employees who receive their full contractual pay or enhanced company sick pay when off sick you need to check the wording of the sickness clause in the employment contracts to determine if you have to pay that or just SSP.  If the employment contract says that contractual sick pay is payable whenever SSP is payable, the employee will be entitled to the enhanced or full pay where SSP is triggered by self-isolation. However, if the contract confirms that full or enhanced sick pay is only paid when the employee is on sick leave then the employee is only entitled to SSP as self-isolation is not the same as being off sick.

Employees are not entitled to SSP merely because they have received an automated alert from the app that they have been in contact with someone who has Coronavirus. Although the app will say that they should self-isolate and take a test, this has only ever been advisory and precautionary. The SSP regulations do not cover this scenario and the legal requirement to self-isolate does not apply in these circumstances.

Do you have to pay employees quarantining after travel?

Employees or workers are not entitled to SSP if they are in self-isolation or quarantine after travel abroad and they cannot work from home.  The employer must decide whether they will pay the employee contractual sick pay.

What action can be taken if an employee does not attend work as they have been advised to self-isolate but is spotted out and about?

If an employee does not attend work because they have been advised to self-isolate, either by NHS Test and Trace or the app, and they are not seen to be self-isolating or are seen socialising, as an employer you are entitled to consider whether a disciplinary offence has been committed in line with your disciplinary policy. You should be mindful though that the burden of proof will be upon you as the employer to show that the employee was not self-isolating therefore take care when relying upon “word of mouth” from other employees.

If you’d like help or advice on legal issues around the requirement for employees to self-isolate, get in touch. Call Tony McPhillips on 0191 211 7854 or email [email protected] or any of the employment team.