As of 12.00am on 28th September 2020 the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 came into force. They set out mandatory periods for self-isolation, and a duty to notify the Secretary of State of the names of people in the same household as anyone who has tested positive for Covid-19.
So, what do you need to know as an employer?
Under the new regulations (regulation 7 to be precise), it is an offence for an employer to knowingly permit a worker or an agency worker to attend any place other than where the individual is self-isolating for any purpose related to their employment. This includes individuals who are required to self-isolate because they live with someone who has tested positive.
There is also an obligation on the worker to inform their employer that they are self-isolating (reg 8). They must notify their employer of the start and end dates of the isolation period and this must be done as soon as reasonably practicable, and in any event, before they are next due to start work within that isolation period.
Under regulation 11, a person who contravenes the requirements set out in regulations 2, 7, 8 or 9 ( 7 and 8 having been referred to above) without reasonable excuse commits an offence. As such, if you, the employer, know a worker has tested positive (or lives with someone who has tested positive) you are now responsible for stopping them from working (unless they can work from home). If an employer fails to do so it will face a fine, starting at £1,000.
What will be taken to be ‘knowledge’ on the part of the employer?
If an employee is contacted by Test and Trace due to them having a positive test, it’s straightforward. However, what if the employee claims that they have tested positive, or that someone in their household has, but the employer disbelieves them?
Our view is that for the purpose of the Regulations, the employer must take the employee at their word and insist they don’t come into work. However, if they have concerns about the authenticity of the employee’s claim, it would be worth asking the employee to forward any supporting evidence at that point and if this is not forthcoming, carrying out a formal investigation upon the employee’s return to work.
What about sick pay?
If the employee qualifies for a discretionary Company Sick Pay scheme that pays in full or an enhanced rate for several weeks / months per annum, the employer would likely be at liberty to exercise their discretion not to pay this where evidence of the positive test isn’t forthcoming.
Please note, however, that the employee would still be entitled to receive Statutory Sick Pay, subject to them satisfying the usual qualifying criteria.
If you require any further information regarding this matter, please contact us on 01942 727200 or email at firstname.lastname@example.org and we will direct you to one of our consultants who will be happy to help.