New Workplace Obligations: Regulating Self-Isolating

New Workplace Obligations: Regulating Self-Isolating

Key Contact: Claire Knowles

Author: Adam McGlynn

The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 (Self-Isolation Regs) come into force today, 28 September, having been rushed through parliament last night. Currently the Self-Isolation Regs only apply to England, though it is entirely possible that the other UK nations will introduce their equivalent soon.

In a Nutshell

The three principal obligations created by the Self-Isolation Regs are as follows:

  1. Individuals testing positive for Coronavirus, or contacted by NHS Test and Trace, will need to self-isolate and non-compliance is now a criminal offence.
  2. Workers who are required to self-isolate must notify their employer of that fact and failure to do so, without a reasonable excuse, is now a criminal offence.
  3. It is now a criminal offence for employers to allow a worker to attend the workplace if they are aware that the worker is legally obliged to self-isolate.

Obligation to Self-Isolate

Government guidance has always been to self-isolate if testing positive for Coronavirus, if symptomatic, if living with someone who is positive or symptomatic, on returning from a non-exempt country, or if contacted by NHS Test and Trace. The International Travel Regulations created an obligation for isolating when returning to the UK, however, the Self-Isolation Regs creates the first legal obligation to self-isolate if testing positive or being contacted by NHS Test and Trace. These individuals must self-isolate, only leaving their home or accommodation for legal or medical obligations or in the event of an emergency.

Though the Self-Isolation regs do not create a specific obligation to self-isolate if sharing a household with a positive or symptomatic individual, those required to self-isolate are also required to disclose the members of their household so that they can be notified separately. In reality, therefore, household members will also be required to self-isolate, either through NHS Test and Trace notification or some separate notification, but their isolation dates will need to be calculated separately.

Period of Isolation

The period of self-isolation begins on being notified of a positive test or being notified of close contact through NHS Test and Trace. When testing positive themselves, the end date of the isolation will be 10 days after the date of the test or, if they reported their symptoms beforehand, the date of their report up to five days before the test. Where the person is being contacted through NHS Test and Trace, the end date of the isolation will be 14 days from the date of close contact or, if already living with the other individual, 14 days from the date the other individual’s 10 day isolation commences.

Implication for Employers

Employers will need to be aware of Regulation 7 of the Self-Isolation Regs which requires employers to prevent workers who they know are self-isolating from attending their place of work during the isolation period. This includes workers who are self-isolating under both the Self-Isolation Regs and the International Travel Regulations. Contravention of this obligation will be a criminal offence punishable by an initial fine of £1,000 reaching up to £10,000 for repeat offences where no reasonable excuse is provided. Fortunately for employers the obligation in Regulation 7 is limited by their knowledge of the workers requirement to self-isolate, however, employers should ensure there are processes in place to facilitate this disclosure.

Regulation 8 creates a separate obligation for workers to notify their employer of their isolation period. While this may provide some comfort, there will still be workers who would rather risk the safety of their colleagues by attending the workplace than self-isolating and only receiving statutory sick pay. Employers should consider implementing appropriate measures to ensure demonstrable compliance with the Self-Isolation Regs. For example, employers could require workers to undergo temperature checks on entering the premises or regularly confirm that neither they, nor anyone in their household, is required to isolate.

For more information on any of the government’s coronavirus response schemes, please contact our Employment Department.

Claire Knowles – Partner

Mark Alaszewski – Associate

Rebecca Mahon – Solicitor

Adam McGlynn – Solicitor