Since 16 August, those who are fully vaccinated, are asymptomatic and have a negative PCR test are not legally obliged to self-isolate if they get pinged by the NHS Covid-19 app for being in close contact with someone testing positive for Covid-19.
With this in mind employers must consider their health and safety obligations and should put policies in place for when their employees are pinged. Failure to do so could lead to a potential breach in health and safety duties, particularly if employees attend work without enhanced Covid measures in place, and as a result they have spread the virus.
The question many have been asking is, will isolating employees still get paid? It is unclear if they would be eligible for statutory sick pay for the period they self-isolate if they remain asymptomatic and have not been contacted by NHS Test and Trace.
If an employer is requiring the pinged staff member to remain at home in these circumstances, and they are ready, willing, and able to work as there is no legal requirement for them to self-isolate, 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 they refuse to do so based on the advice of the app, there could be a potential conflict regarding pay.
Potential litigation may emerge if employers on a large scale require pinged employees to attend work as a policy and refuse to pay those employees who do not want to go in on health and safety grounds.
Employers and HR should also consider the following in regards to the so-called pingdemic:
- Although it is no longer a legal requirement, employers are still advised to maintain their record-keeping by using a QR code or other check-in process for staff and visitors to support NHS Test and Trace.
- 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.
- Lower-paid workers who are required to self-isolate after being pinged 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.
Once under-18s are also fully vaccinated, it is hoped that more people can really start to get on with their lives. However, employers must make sure they remain up-to-date with any changes to the self-isolation rules and adapt accordingly.
David Sheppard is an employment lawyer at Capital Law