Changes to close contact self-isolation from 16 August: Q&A

What is changing from 16 August 2021?

From Monday 16 August, those who are under the age of 18 years 6 months, fully vaccinated (and beyond 14 days from their second vaccine dose), part of an approved COVID-19 vaccine trial or unable to take the vaccine for medical reasons will be exempt from the legal requirement to self-isolate if they are a close contact of a positive COVID-19 case. This applies both to close contacts within the same household and to individuals notified by NHS Test and Trace. Individuals who are exempt will be advised to take a PCR test, unless they have received a positive PCR test result in the previous 90 days. If the PCR test result is positive, the individual will then be legally required to self-isolate. 

Should an employer check whether an employee is exempt?

The self-isolation regulations make it an offence for an employer to ‘knowingly’ allow self-isolating employees to attend a workplace outside their home, but do not place a duty on an employer to check whether an employee is exempt from self-isolation.

Can employers ask for and record vaccination status?

 In light of these changes, some employers may need to know which of their staff have been double vaccinated. Where employers are checking or recording vaccination status, they must comply with their data protection obligations around recording this special category health data. The ICO has released guidance on vaccination and COVID status checks. It states that employers should have a clear and necessary reason for recording employees’ vaccination status, which cannot be achieved without collecting that data. Employers will need to be very clear about what they are trying to achieve by checking staff vaccination status; a ‘just in case’ basis will not be sufficient. The sector, type of work, working environment and health and safety risks will be relevant and key factors.

 How should employers prepare for this change?

Employers have a duty under the Health and Safety at Work Act to take reasonable steps to ensure that the working environment remains safe for all colleagues, including clinically extremely vulnerable staff. Reasonable steps in this context are likely to include advising staff:

• about the upcoming changes to close contact self-isolation;

• that by attending the workplace (after being identified as a close contact of a positive COVID-19 case) they are confirming that they fall within the close contact self-isolation exemption; and

• that attending work when they should legally be self-isolating may risk the safety and wellbeing of their colleagues, and may be considered to be a disciplinary offence.

 Can employers ask employees who are exempt from self-isolation to take a COVID-19 test?

Individuals within the close contact self-isolation exemption are not legally required to take a COVID-19 test and are also not advised to take a PCR test if they have received a positive PCR test result in the previous 90 days. So requiring employees who are properly exempt from self-isolation and testing to undergo an invasive COVID-19 test may be unwelcome. However, the Government guidance encourages those who are exempt from self-isolation (as close contacts of a positive COVID-19 case) to take part in regular lateral flow testing and /or take additional safety measures such as wearing face coverings, distancing and limiting contact with anyone who is clinically extremely vulnerable. 

Can we refuse company sick pay to an unvaccinated employee who has been notified to self-isolate?

Employers may consider withdrawing company sick pay from unvaccinated employees who are required to self-isolate. However a blanket policy will carry legal risks. Employers will firstly need to check the wording of their employment contracts and sick pay policies; some may be linked to statutory sick pay, while others may require an employee to be ill. It is also important to be mindful of individual circumstances to avoid grievances or discrimination risks, for example, medical conditions which may mean that an employee cannot take the vaccine.There are also practical reasons why an employer may choose to provide enhanced company sick pay; to encourage employees to comply with the legal requirement to self-isolate and not risking the safety and wellbeing of others by attending the workplace.

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If you would like to talk through the consequences for your business, please email us and one of our team will get in touch.