How Employers should handle the Test and Trace scheme

The government’s Test and Trace Scheme is a voluntary initiative tracking people who’ve tested positive for Covid-19 and identifying anyone they’ve been in close contact with; those individuals can then be contacted and asked to self-isolate at home for 14 days, whether they’re also showing signs of having the virus or not.

At the moment, only people showing Covid-19 symptoms are being tested. Up to date government guidance can always be found here.

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Technically, it is not mandatory at the moment. Instead, the Scheme relies on:

• people who have tested positive voluntarily registering asap with the NHS Test and Trace website
• those contacted as a result, immediately agree to self-isolate for 14 days and informing their employers, and
• employers following the government’s guidance and encouraging employees to comply with the scheme, while needing to handle sudden staff absences (due to self-isolation notifications) at short notice.

HOWEVER, in effect, it is a legal requirement for employers to do their part under the scheme. This is because UK Health and Safety law requires employers to keep their employees safe at work. Employers knowingly allowing a track-and-traced employee to come into work, in disregard of the 14-day self-isolation protocol, would likely be treated as breaking the law by placing the health and safety of all other employees potentially at risk.

Data protection compliance is also relevant to this situation and we touch on that below as well.

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• encourage staff to comply with the scheme

• make clear that individuals must:

  • immediately notify their managers (ideally by phone, to minimise further face-to-face contact) if they are contacted by a NHS contact-tracer and
  • if they are at work when they receive the notification, leave the premises immediately, without coming into contact with anyone else, where possible, and
  • provide their employer with a copy or a confirmation of the formal notification that they receive under the Track and Trace Scheme, which the employer can then use to record the absence and process any necessary SSP claim, if the employee is unable to work from home
  • keep in touch with their employer to let them know if they fall sick with Covid-19 during their self-isolation
  • not set foot back in the workplace until the 14 day self-isolation period has passed
  • comply with these arrangements (to notify, self-isolate, update and stay away) or risk their conduct being treated as misconduct under a disciplinary procedure

• ensure that self-isolating employees aren’t pressured into coming back to the workplace while they’re complying with the scheme rules or medical advice; and for health and safety reasons, do not allow them back on site until the 14 day self-isolation period has expired

• Either:

  • pay employees who need to self-isolate under the scheme statutory sick pay (SSP), whether they have symptoms or not, or
  • if the employee confirms that they feel well and they are able to work from home during their 14 days’ isolation, do not treat this as sick leave. Instead, they should be paid their usual wage.

  (The government is reimbursing employers with less than 250 employees on the payroll on 28 February 2020 with up to 14 days of SSP for every employee who needs to take sick leave for Covid-19 reasons.)

• make arrangements for interim staff cover if you’re able to do so, so that business-critical tasks can still be performed

• consider very carefully how to tell other members of staff. Data protection rules come into play here and they are important. If a member of staff self-isolates with Covid-19 symptoms or reports in sick with a confirmed case of Covid-19, managers have a legitimate need to inform other staff (who may also need to self-isolate), and they may need to inform other people, like customers, suppliers, or those the individual concerned may have had direct contact with.

In those situations, it may be unavoidable to share the identity of that individual with those direct contactees, but it should be avoided wherever possible. The regulators have issued guidance that, as far as possible, individual identities shouldn't be disclosed.

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