Implications for employers of the latest Covid 19 regulations

I realise this might all change again as the week or even the day progresses but I just thought I would update you on the employer implications of the edict issued on September 27th and what the employers responsibilities are should an employee test positive and required to self isolate or lives with someone in that position
The Government issued new regulations Sunday 27 September which came in to force at midnight September 28th. The complex Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 set out mandatory periods for self-isolation and the duties of individuals to report when anyone in their household has tested positive for COVID-19.

Amongst the regulations is an important change for employers. Employers will now face fines starting from £1,000, if they knowingly permit a worker to attend any other place than that which they are self-isolating. Employers must stop employees who have tested positive for the virus, or who live with someone who has tested positive, from working, unless they can work from home.

The regulations also set out that it is the responsibility of the employee to inform their employer that they are self-isolating. Failure to do so will be a separate criminal offence which again attracts a fine of £1000. for a first offence.
Employees who have been traced through either of the track and trace systems in England or Wales and told to self-isolate for 14 days may be eligible for SSP.
Employees will be eligible for SSP if:

  • they meet the usual eligibility requirements for SSP;
  • they have been traced through either Test, Trace and Protect (Wales) or Track and Trace (England); and
  • they are unable to work as a result.

Can employees work during a period of self-isolation?
while a period of self-isolation meets the criteria to qualify for SSP, this only applies where, by reason of the self-isolation, the employee is unable to work.  It does not prevent the employee from working from home if they are well and their role enables them to do so.
If the employee is well, has no symptoms and can carry out their work from home during a period of self-isolation, they should receive full pay in the normal way. Employees should notify their employer if their position changes and they start to feel unwell and are unable to work.
If an employee is unable to do their normal or full role during a period of self-isolation, employers should discuss options of them carrying out a different role or adjusting their duties during the period of self-isolation so they can work from home and receive pay.
If an Wemployee is unable to work from home, they may be entitled to SSP or enhanced sick pay (depending on the terms of their contract of employment).

Can an employer request evidence of a request to self-isolate?
Yes. Employees will be provided with written confirmation of the instruction to self-isolate which can be shared with the employer. Employers can request an NHS self-isolation note or other forms of communication the employee has received in writing from the NHS. In many cases, this may be in the form of a text message.

Can employees take annual leave during a period of self-isolation?
Yes, if an employee is unable to work from home, they may request to take annual leave if they have sufficient holiday remaining. This would be full pay in the usual way.

Do employees need to inform their employer if they are asked to self-isolate?
Yes, employees should inform their employer it is now a criminal offence for the employee not to inform their employer they are self isolating.. If they are unable to work from home as a result, they should notify their employer with the timescales set out in their contract of employment and/or sickness absence policy.

How do we encourage employees to notify us of a request to self-isolate, particularly if they know they will not receive full pay?
The government guidance for both Wales and England makes it clear that employers should be taking steps to encourage employees to be open about being notified of the request to self-isolate. Employers need to remind their staff it is now a criminal offence for them not to notify their employer if they have been asked to self isolate  Employers owe a duty of care to their staff and must follow health and safety legislation. If an employee comes into work because they don’t want to risk not getting paid they are committing  a criminal offence in addition  there is a risk they could spread the virus around the workplace, which could, in some cases, lead to a workplace closure.
Employers should take steps to introduce policies or update their existing policies to make it clear to employees what is expected of them if they are notified through the tracing system.
They should also keep in touch with their employees and provide support.
In no circumstances should an employee be allowed back into work during a period of self-isolation.
Employers should consider the risk of a breakout in the workplace and potential workplace closure if employees do not notify of the request to self-isolate. Employers may wish to consider an enhanced pay during a period of self-isolation for those employees who would only receive SSP as they cannot work from home. While this may present an additional cost to the business, this would be for the purpose of encouraging employees to notify their employer of the request to self-isolate to try and take steps to avoid the risk of a workplace closure which could potentially be more costly to the business.

Should a period of self-isolation be recorded against an employee’s sickness record? 
The government recommends that self-isolation as part of the contact tracing system should not be recorded against an employee’s sickness record.


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