Test and Trace

On 28 May 2020, the Government launched its new ‘Test and Trace’ service, which will:

• allow for quick testing for anyone showing symptoms of COVID-19, to determine whether they have the virus;
• contact anyone who has received a positive COVID-19 test result to help them share information about their recent close contacts; and
• alert such contacts (if any), where necessary, and notify them that they are required to self-isolate.

Guidance has been published for employers and workers, explaining how the system will help manage the risk of the virus re-emerging as businesses begin returning to the ‘normal’ way of working. Key points from the guidance are as follows:

• Employers must carry out a new COVID-19 risk assessment if they have not already done so. The Health and Safety Executive has published guidance to help conduct a risk assessment, which is available here.
• Once an individual first develops symptoms and orders a test, they will be encouraged to alert those they have had close contact with during the 48 hours prior to their symptoms beginning.

If any of the close contacts are co-workers, the individual may wish to ask their employer to alert those co-workers, however the individual is not obliged to do so.

At this stage, the close contacts do not need to self-isolate, but:

• must avoid individuals who are at a high-risk of contracting the virus, e.g. those with pre-existing medical conditions; and
• must take extra care in practising social distancing, maintaining good hygiene (i.e. washing hands) and watching out for symptoms.
  
  
• If an individual with symptoms tests positive for COVID-19, the Test and Trace service will ask them to share information about their close recent contacts.

If the recent contacts work in or have recently visited one of the following settings, the contact tracing process will be escalated to local public authority experts, who will liaise with the manager of the setting:

• a health or care setting e.g. hospital or care home;
• a prison or other secure establishment;
• a school for children with special needs; or
• any setting where there is a risk of a local outbreak.
• In other cases, any non-household contacts who are required to self-isolate will receive notification from the Test and Trace service, either by phone call, letter, email or text message.

This can be used as evidence to inform an employer that they have been told to self-isolate, which will be needed for SSP purposes.

• Individuals notified that they have had close recent contact with an infected person will be instructed to stay at home and isolate for 14 days.

Unless the notified individuals go on to develop symptoms, members of their household do not need to self-isolate.

• Employees in self-isolation will be entitled to Statutory Sick Pay (SSP) for every day they are isolating, provided they meet the SSP eligibility conditions.

However, if employees can work from home during self-isolation and remain well, employers should allow them to do so if practicable. If an employee is working from home, they should continue receiving full pay.

Alternatively, employers should allow isolating individuals to take paid holiday leave to receive full pay rather than sick pay if they would prefer.

• Agency workers or workers on zero hours contracts who have been told to self-isolate must work from home if possible. If they are unable to work from home, they may be eligible for SSP or Universal Credit while self-isolating in line with government guidance.
  
  
• In the event of multiple cases of the virus appearing in a workplace, an “outbreak control team” will be assigned to help the employer manage the outbreak, if necessary. In the first instance, employers should seek advice from their local authority.
  
  
• Workers who believe that the contacts who triggered notifications are from their workplace should ask their employer to consider what further mitigating actions could be taken to reduce the risk of contamination in the workplace.

An NHS COVID-19 app is intended to form one component of the new test and trace service. The aim of the app is to speed up contact tracing and to reach people who may not be reached through traditional forms of contact tracing in the event that an individual who tests positive cannot identify all close recent contacts e.g. if they have sat next to someone on public transport. The app is currently being trialed in the Isle of Wight prior to being implemented nationally.

What should employers do now?

There are a number of things you should consider when implementing Test and Trace into your workplace.

1. Communicate clearly with all staff, explaining how Test and Trace works and providing links to the relevant guidance.
   
   
2. Emphasise that your business will be following that guidance and expects employees to do the same to protect everyone’s health and safety.
   
   
3. Reiterate the process staff should follow if they develop symptoms while:
   
   A. at home – including self-isolating rather than attending work, notifying you, immediately ordering a test and then following any subsequent instructions under Test and Trace; or
   
   B. at work - including leaving the workplace with minimal/no contact with other colleagues, notifying you, ordering a test etc.

4. Confirm that staff who receive a notification from Test and Trace asking them to isolate must immediately do so, notify you of this and share the evidence provided by the NHS.
   
   
5. Explain that employees who are self-isolating will be entitled to SSP (paid at a flat rate of £95.85 per week for up to 28 weeks), but that you will also explore alternatives, such as those who can work from home continuing to receive normal pay and/or the possibility of employees requesting and taking paid holiday.
   
   
6. Explain that when an individual’s entitlement to SSP ends, they may be able to claim Universal Credit and/or Employment and Support Allowance depending on their individual circumstances.
   
   

If you have any questions, please do not hesitate to contact Sarah Lee or another member of BPE’s Employment Team.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.