Considerations for employers: Updated self-isolation rules and FAQs on vaccination status

From Monday, 16 August 2021, people who have been double vaccinated or aged under 18 are no longer legally required to self-isolate if they are identified as a close contact of a positive COVID-19 case.  In the case of those who are double vaccinated – they will only be exempt if they had their second jab at least two weeks before they came into close contact with the positive case.

This will have implications for employers – we pick out some of the key parts of the government guidance below.

Workers and self-isolation – where are we now?

• If a worker is told to self-isolate by NHS Test and Trace, they have a legal duty to inform their employer as soon as possible before they are next due to work, unless they are working in the place they are self-isolating (such as their home). Failure to do so could result in a £50 fine for the worker.
• Workers who are exempt from self-isolation do not need to inform employers if they are a contact of a positive case and employers are not expected to check whether an individual is exempt. Workers also do not need to inform employers if they have received a contact notification and advice from the NHS COVID-19 app.
• Those contacts who are exempt from self-isolation from 16 August will still be advised to take a PCR test (which can be obtained for free through the government website), but will not be required to self-isolate while they wait for the result. Whilst the PCR test is not compulsory under government guidance, some employers are considering making it a requirement for those who need or want to come into the workplace to take a PCR test as a measure to help keep all staff safe.

Employer offences and fine

• It is an offence for an employer to allow a worker to attend the workplace if the employer is aware that the worker is legally required to self-isolate because they have been notified by NHS Test and Trace that they have either:
  • tested positive for COVID-19; or
  • been in close contact with someone who has tested positive for COVID-19 and they are not exempt from self-isolation.
• If the employer knows that a worker is required to self-isolate, it must not allow them to come into work or work anywhere other than where they are self-isolating (usually their home) for their full self-isolation period, unless they are participating in an approved daily contact testing scheme. Failure to do so could result in the employer facing a fine, starting from £1,000. There is also the risk of adverse publicity.
• If a worker has received a notification from the NHS COVID-19 app that they have been a contact of a confirmed case, they will still be told to self-isolate unless they are under 18 years and 6 months or fully vaccinated, as they may be infectious and could spread the virus. There is no legal obligation for them to inform their employers of an app alert, but if they do, employers should be strongly encouraged to support employees to self-isolate.  Note the different rules that apply if notified by NHS Test and Trace (set out in the sections above) as opposed to the NHS COVID-19 app.
• In our view employers should reinforce this new guidance and emphasise their expectations on staff through regular communications with all staff.  For example, making clear that if an individual is identified as a close contact of someone with COVID-19, then by entering the workplace they are self-declaring that they have been double vaccinated and taken a negative PCR test.

What happens if workers cannot work from home during a period of self-isolation?

• Government guidance provides that if a worker cannot work from home, an employer:
  • may consider giving them the option to use their annual leave;
  • should pay contractual sick pay, where appropriate (it’s worth noting that the ACAS guidance states that if an employee or worker cannot work from home while self-isolating, they must get any sick pay to which they are entitled);
  • must ensure they receive Statutory Sick Pay as a minimum, provided they meet the eligibility criteria;
  • should make workers aware of the support available to help them to self-isolate.
• Employees in self-isolation are entitled to Statutory Sick Pay for every day of work missed for their self-isolation period, provided they meet the eligibility criteria.  The individual must:
  • have an employment contract and have done some work for the employer;
  • earn an average of at least £120 per week; 
  • tell their employer they are sick within the time limit set by the employer (or 7 days if the employer has not set a time limit); and
  • have been ill or self-isolating for at least 4 days in a row (including non-working days).
• Small and medium employers (with fewer than 250 employees) may be able to reclaim their costs for Statutory Sick Pay. NHS Test and Trace will provide evidence to the employee that they have been told to self-isolate, and how long for. Employers may ask employees to follow the instructions on getting an isolation note if they require further evidence.
• Employees or individuals who are self-employed and cannot work from home may also be eligible for a support payment of £500 if they are required to self-isolate and meet the criteria of being from a low-income household.

FAQs on vaccination status

Given the changes to the rules effective from 16 August, which place an emphasis on vaccination status, employers are grappling with a number of queries in this areas.  We tackle some employer FAQs below.

Can we ask staff about their vaccination status?

• While employers can potentially ask about vaccination status, they will need to be aware of their data protection obligations.  Staff’s health information is considered “special category personal data” under the UK GDPR, and so to process it an employer must identify both:
  • A lawful basis for processing personal data e.g. an employer identifying a legitimate interest and showing that processing is necessary to achieve it, taking into account the employees’ interests, rights and freedoms.
  • An exemption for processing health data e.g. performance of rights and obligations in connection with employment (e.g. to ensure health and safety of workers/safe working environment) or where processing is necessary for the establishment, exercise or defence of legal claims.
• The ICO has issued guidance on this topic and states that the sector in which the employer operates, the nature of the work and health and safety of the particular workplace will be relevant for employers in deciding whether they lawful grounds for collecting and using vaccine status data.  For example, an employer is more likely to be justified in collecting data in situations where staff are likely to come into contact with those infected with COVID-19 at work, or where staff could pose a risk to clinically vulnerable individuals. 
• Accordingly, if employees are working from home and continuing to do so, there would be little justification for collecting vaccination data.  This is in contrast to situations where staff are required on site and accordingly information about their vaccination status is important for health and safety of the workplace.
• The use of data must not result in any unfair or unjustified treatment of employees, customers or visitors.  If the use of the data is likely to result in a high risk to individuals (e.g. denial of employment opportunities or services) then the employer will need to complete a data protection impact assessment.  We work closely with our specialist data protection colleagues and can advise you further in this area.  Our teams are also receiving many client queries about transferring data outside the UK so look out for our upcoming alert on this. 

Can we rely on the employee’s consent to check vaccination status?

• In short, no.  Given the power imbalance between employer and employee consent is unlikely to be “freely given” and accordingly an employer cannot rely on consent as a lawful basis for processing information.

How should we collect data about their vaccination status?

• If an employer conducts a visual check of COVID passes only – i.e. it simply looks at a hard copy or a picture on a screen, but does not retain any data – the ICO states this would not constitute processing and would fall outside the scope of the UK GDPR.
• Where checks are carried out digitally e.g. by scanning the QR code displayed on a pass, this would constitute processing of personal data, even if the employer does not keep a record of it and the UK GDPR would apply. 

What data should be collected?

• In line with general data protection principles, employers should not collect more data than is necessary e.g. details about dates of vaccination, which type of vaccination, gaps between 1st and 2nd doses etc is unlikely to be necessary.
• Any information that is recorded should be accurate, kept up to date and retained for no longer than necessary and should not be disclosed without a legitimate and necessary reason. The ICO advises that employers should regularly review whether they still have grounds for the collection and retention of vaccination data.
• The ICO is clear that information should not be recorded on a “just in case” basis and instead an employer should be able to specify its use for this information and the reason for recording it must be clear and necessary.

We have specialist team of employment lawyers and data protection lawyers keeping up to date with the latest Covid-19 developments.  For any queries, please contact Paul Reeves, Leanne Raven or your usual Stephenson Harwood contact.