FAQs – Rights at work during the ‘pingdemic’ for employers and employees

What should employers do if their staff are told to isolate?

If a staff member has been told by NHS Test and Trace or they develop coronavirus symptoms, they must be sent home (if they are at work), regardless of their vaccination status. If an employee is well enough and able to, they should continue to work from home during their isolation.

However, if an employee is told to self-isolate after being ‘pinged’ by the NHS Covid-19 app, meaning they have been in close contact with someone with COVID-19, there is no strict legal obligation to self-isolate if they are asymptomatic and have a negative test. It is advisory only.

However, employers must consider their health and safety obligations and should consider putting policies in place for when their employees are ‘pinged’. Failure to do so could lead to a potential breach in health and safety duties if employers require ‘pinged’ employees to attend work without enhanced COVID-19 measures in place. This includes actions such as heightened social distancing and daily testing, as pinged employees have been identified as being at a higher risk of transmitting the virus to others at work.

Will isolating employees still get paid?

If an employee is unable to work from home, or otherwise, for at least four days as a result of their isolation, employers must pay them any statutory sick pay they are entitled to.

However, those employees are not legally obliged to self-isolate after getting ‘pinged’ by the NHS COVID-19 app. It is unclear if they would be eligible for statutory sick pay for the period they self-isolate in accordance with this advice if they remain asymptomatic and have not been contacted by NHS Test and Trace.

If an employer is requiring the ‘pinged’ employee to remain at home in these circumstances, and the employee is ready, willing, and able to work, then arguably they are placed on enforced medical suspension and should receive their full pay during this period.

Alternatively, if an employer is permitting ‘pinged’ and asymptomatic employees to work with sufficient COVID-19 safeguards in place, and the employee refrains from working based on the advice of the app, there will be a potential conflict between an employer’s expectation for that employee to attend work and their decision to follow the advice. Ultimately, the subject of pay will present itself in these conversations if an employee refuses to attend work. We anticipate potential litigation will emerge if employers on a large scale require ‘pinged’ employees to attend work as a policy, and refuses to pay those employees who refuse to work on health and safety grounds.

What if many being told to isolate means not enough staff to be operational?

Some employers are able to put self-isolating staff on furlough (provided they meet the general eligibility requirements in terms of start dates), although this is little known, the government are now allowing the furlough scheme to be used in this way despite acknowledging that paying isolating staff is not necessarily the original reason the scheme was introduced. As it stands, this scheme is currently due to end at the end of September 2021

We also anticipate that if the so-called ‘pingdemic’ worsens in the lead up to 16 August, many employers will develop emergency policies that permit asymptomatic pinged employees to attend work, with heightened COVID-19 measures in place, and a requirement for daily lateral flow testing. Employers in key sectors will also seek to rely on the list of keyworker exemptions provided by the UK Government.

What do HR/employers need to consider from a legal perspective if staff are told to isolate?

1.  Employers can reclaim from the UK Government up to 2 weeks’ statutory sick pay paid to isolating employees if the following apply;

• The employee was off work because they had COVID-19, was legally obliged to self-isolate, or was shielding,
• The employer’s PAYE payroll scheme started on or before 28 February 2021,
• The employer had less than 250 employees on 28 February 2020.

2.  If employees want to continue coming to work when they are legally required not to (for example, if they have been told by NHS Test and Trace to self-isolate or they or a member of their household have COVID-19 symptoms), employers must prevent them from attending work. It is a potential criminal offence for an employer to knowingly allow staff to come into work when they are under a legal obligation to stay at home.

3.  In terms of record-keeping, employers are still advised to maintain their record keeping by using a QR code check-in, or other check-in, for staff and visitors to support the NHS Track and Trace. Although, this is no longer a legal requirement.

4.  Employees in some sectors are exempt from any ‘ping’ requirement to self-isolate from the NHS COVID-19 app, or being contacted by NHS Test and Trace (provided they are not required to self-isolate due to them or a member of their household having symptoms) and have a negative test. Currently, this applies to ‘critical workers’ only, however, the list of sectors is set to expand and the government has released an extended list of exempt sectors.

5.  Lower paid employees who are required to self-isolate should ideally also be informed by their employer of the possibility of applying for a £500 grant under the Test and Trace Support Payment Scheme, which applies to workers self-isolating after contact by NHS Test and Trace or ‘pinged’ by the NHS COVID-19 app. The eligibility for payments under the scheme is determined by each local authority and is primarily limited to lower-paid employees who are unable to work from home and will lose income as a result of self-isolating.

What is best practice?

The action that employers should be taking will depend on the nature of the workplace, employers should keep up to date with their sector’s movements into a ‘critical worker’ status.

Any employers considering adopting a policy of requiring ‘pinged’ employees to still attend work must carefully consider the health and safety implications of this, including undertaking a risk assessment, implementing heightened covid-measures to ensure the risk of transmission is reduced and colleagues and visitors of the workplace are not placed at higher risks of being infected.

However, if employees have reasonable grounds for refusing to attend work after being pinged, employers should ideally have clear policies ensuring there is a minimum degree of voluntary hardship payment to that employee or permitting them to take paid annual leave during the course of their isolation to minimise the risk of litigation.

The hope is by 16 August in England (earlier in Wales and Scotland), once the exemption is introduced to compulsory self-isolation for under 18s and double jabbed persons, provided they are asymptomatic, the situation will hopefully stabilise as we transition into new self-isolation rules.