Out-Law Analysis | 20 Oct 2020 | 9:38 am | 5 min. read
Whilst arrangements to test, trace and track Covid-19 cases are outside of the scope of the Health and Safety Executive (HSE), the regulator will maintain oversight of how duty holders are meeting their responsibilities in the context of the current public health risk. Employers must therefore be equipped to respond appropriately to knowledge that employees, or members of the supply chain, have tested positive for the virus or are close contacts of such a person.
Test & Trace was launched in England on 28 May 2020. Similar manual tracing schemes are operating in the devolved jurisdictions.
Under the Test & Trace system in England, people who test positive are required to self-isolate for a minimum of 10 days. Contact tracers will get in touch with the individual to ask for information about their household and close contacts in the 48 hours before becoming unwell.
NHS guidance provides examples of ‘close contact’ including face to face contact within 1m; more than 15 minutes within a 2m distance; and travelling in a small vehicle or close to someone on a plane or in a large vehicle.
Those people who are considered to be at risk of infection are notified and instructed to self-isolate for 14 days, regardless of whether they are displaying any Covid-19 symptoms. People are urged not to get a test unless they have any symptoms and a negative result would not, in any event, permit an early return to work because of the incubation period of the virus.
Arrangements to test, trace and track Covid-19 cases are outside of the scope of the HSE, but the regulator will maintain oversight of how duty holders are meeting their responsibilities in the context of the current public health risk.
The NHS will not reveal the identity of the person who tested positive and employers should be careful not to do so as well.
Initially, compliance with the Test & Trace scheme was voluntary, with no sanctions for individuals who refused to self-isolate. However, on 28 September 2020, The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 gave the requirement to self-isolate the force of law. People who have tested positive for Covid-19 or have been notified as close contacts via the Test & Trace scheme now have a legal duty to self-isolate. Fines for non-compliance start at £1,000 and increase up to £10,000 for repeat offenders, including those who prevent others from self-isolating.
The law requires workers to inform their employers if they have to self-isolate and it would be an offence for employers to knowingly allow, without reasonable excuse, one of their workers or agency workers to go anywhere other than where the person is self-isolating for any purpose related to their employment.
To support the scheme by incentivising low earners to adhere to the rules of self-isolation, payments of £500 can be made by the local authority. The law on statutory sick pay (SSP) was also updated to cover those individuals who are legally required to self-isolate via the Test & Trace scheme.
The NHS Covid-19 app was released on 24 September 2020 for use in England and Wales following trials of the technology on the Isle of Wight and in the London Borough of Newham. The release follows the earlier launch of similar apps by the Northern Ireland Executive and Scottish government.
With the use of Bluetooth technology, the app aims to automate the human process by alerting people when they have been near someone who has tested positive for Covid-19. It also allows people to check symptoms, book a test and ‘check-in’ to places they visit using a QR code system.
The app is intended to complement the Test & Trace scheme rather than replace it. The app should help to capture possible transmission that manual contact tracing cannot i.e. someone in the same queue or bus who is not known to the person who has tested positive and whose details couldn't, therefore, be provided to the contact tracer.
The main difference between the Test & Trace scheme and the Covid-19 app is in the consequences of non-compliance. There is no requirement in law to download the app due in part to the fact that a proportion of the population do not have access to a smartphone or to sufficiently up-to-date operating software. An instruction to self-isolate via the app therefore carries no force of law whereas the same instruction via the Test & Trace scheme imposes a legal duty and non-compliance could give rise to a financial penalty.
There are a number of compliance issues for an employer to consider when faced with knowledge of positive cases of Covid-19 in the workplace, or workers who have been instructed to self-isolate via the Test & Trace scheme. Principally, an employer who brought such people back to work early, or knowingly allowed it to happen, could face a financial penalty, significant reputational damage and potential regulatory investigation and enforcement action.
Employers should therefore prepare and communicate a procedure to follow in these circumstances. This procedure should require employees to inform the business immediately if they have tested positive, or have been identified as a close contact. Employees should be asked for a copy of the NHS notification and instructed to self-isolate immediately. Support should be given by allowing the individual to work from home if possible, permitting paid annual leave if requested, confirming the SSP position where relevant and considering any mental health issues that could arise from a person's self-isolation.
Employees should also be told that failing to declare a positive test, or a refusal to self-isolate for the requisite period, could potentially constitute an offence, could put others' health and safety at risk and would be treated very seriously. Whilst close contacts who have been notified via the app, as opposed to the Test & Trace scheme, are not legally required to self-isolate, the government regards the app as an important part of its Covid-19 prevention strategy and expects employers to support it. For this reason, it would be inadvisable to distinguish between the two categories of close contacts and all employees should be encouraged to self-isolate irrespective of where the notification came from.
The combined effect of the Test & Trace scheme and the app could be increased employee absence at short notice. To mitigate this, employers should implement and monitor appropriate social distancing rules for their workplace because this will reduce the number of employees who have been in 'close contact' with the colleague who has tested positive. Contingency plans should also be devised for critical teams or tasks in case of sudden absences.
Government guidance directs an employer to alert its local health protection team where there is more than one case of Covid-19 in the workplace. In addition, employers should consider their residual general health and safety duties to employees and others such as contractors, visitors and members of the public. Employers should revisit their Covid-19 risk assessments and mitigation measures to assess their suitability and monitor the level of adherence with them. Furthermore, advice may be needed when considering the tricky judgment call regarding RIDDOR reporting. Whilst it is clear that being 'at work' and subsequently testing positive for Covid-19 is insufficient to pass the threshold for reporting to the HSE, it may be less clear that there is reasonable evidence linking the nature of the person’s work with an increased risk of becoming exposed to coronavirus which would necessitate a report.
Employers should prepare themselves to deal with regulatory scrutiny in the event of an outbreak of cases, instances of whistle-blowing or unannounced HSE spot checks to ensure that appropriate measures are in place to protect workers from Covid-19. First impressions count and so managing these visits effectively will be of vital importance to the outcome which can range from advice through to enforcement notices and even prosecution.
Lastly, the HSE has resumed targeted proactive inspection work of high-risk industries and will continue to investigate work related deaths across all industry sectors, the most serious major injuries and dangerous occurrences. It is therefore essential that employers do not inadvertently ignore or downgrade other health and safety risks as they simultaneously grapple with the implications of the pandemic.
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