Kate Shawcross, employment law solicitor at Harrison Drury, explains an employer’s responsibilities in ensuring employees who test positive for coronavirus self-isolate for the required period and the areas of employment law that apply.
From 28 September 2020, people will be required to self-isolate immediately if they test positive for coronavirus or are contacted by the NHS Test and Trace System.
Employers will need to ensure employees do not attend work if they are required to self-isolate.
New fines announced for employers
The government has warned that anyone breaching the legal requirement to self-isolate could face fines, starting at £1,000 and increasing to £10,000 for repeat offences or the most serious breaches. This includes preventing others from self-isolating.
Employers are therefore at risk of receiving fines if they discourage employees from self-isolating, or threaten them with redundancy if they do not attend work.
NHS Test and Trace workplace guidance
The NHS test and trace guidance states that it is vital for employers to make their workplaces as safe as possible, require their staff to self-isolate when they have been asked to do so, and also support those staff whilst they are in isolation. This includes working from home, wherever possible.
Paying employees who are self-isolating
Under the amended Statutory Sick Pay (‘SSP’) Regulations, and subject to the usual eligibility requirements, an employee is entitled to SSP (currently £95.85 per week) if they are self-isolating because they have symptoms of coronavirus, have tested positive, are living with or linked to someone who has symptoms or has tested positive, or have been contacted by the Test and Trace System and are therefore unable to work.
As it stands, SSP is not available for an employee who is self-isolating after travelling abroad (unless one of the above circumstances also applies).
Some employers offer more than SSP and will provide contractual sick pay, details of which will be stated in the employment contract.
In light of the new legal requirements to self-isolate, employers should be clear about the entitlement to company sick pay. A sick pay policy requiring an employee to actually be ‘sick’ in order to be entitled to company sick pay could deter employees from following the new legal requirement to self-isolate, for fear of receiving SSP instead of their normal wage.
The ‘Test and Trace Support’ payment
Those on lower incomes who cannot work from home and have lost income as a result of having to self-isolate, will be supported by a new Test and Trace Support payment of £500. This will be available for those who are required to self-isolate from 28 September.
Evidencing the need for self-isolation
Normally employers require a fit note for absences that exceed seven days. Employees are now able to obtain an online isolation note from NHS 111 online as evidence of their need to self-isolate.
However, the notification from NHS test and trace instructing an individual to self-isolate due to contact with an infected person will be sufficient as evidence of sickness for SSP purposes (and will be necessary in order to obtain a rebate under the Coronavirus Statutory Sick Pay Rebate Scheme)
Working from home while self-isolating
If an employee needs to self-isolate and can work effectively from home, employers should consult with the employee as they may be able to work from home if they are well enough. People who can work from home will not be entitled to SSP and should receive their usual pay.
If you require further information on this subject, or any other employment law matter relating to COVID-19, contact Kate Shawcross in our employment team, or call 01772 258321.