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News & Updates

Covid 19 update

In the last week our HR & Employment Law team has received an influx of questions regarding current Covid-19 guidelines. We appreciate that the guidance is ever changing, and it can be difficult to keep up, therefore, we have compiled this update to address a few frequently asked questions.

First, an overview of the current Covid-19 guidelines which are important from a HR perspective… 

   
Working from home 

Currently, people should work from home wherever possible. It is likely that those who can work from home will have already done so in the last 18 months, and so hopefully employers have systems in place to enable remote working with little disruption. 
 
Where staff are unable to work from home, it is advised that employers revisit their COVID-19 risk assessments to guarantee ongoing compliance with government guidelines. 
 
Self-Isolation Periods

The self-isolation period is currently seven days provided that negative lateral flow tests are produced on days 6 and 7 of the self-isolation period. The tests must be taken 24 hours apart, and negative results mean that people no longer have to self-isolate for the full 10 days. 

However, unvaccinated contacts of positive COVID-19 cases must still self-isolate for the full 10 days.

To clarify, this means that fully vaccinated people who test negative as above, can leave self-isolation on or after day 7. 

Fully vaccinated adults who are identified as close contacts may not need to self-isolate but should take a lateral flow test every day before leaving the house for at least seven days.

It is also worth noting that if employees feel well enough, then they can be allowed to work from home during periods of self-isolation. Alternatively, you can allow employees to use holiday during periods of self-isolation, should they wish. 

For further information regarding self-isolation rules, please visit the NHS website here

Changes from 11 January 2022 

From 11 January, people who test positive with a lateral flow test do not need to order a follow-up PCR test if they do not have symptoms of Covid-19. 

Anyone who has symptoms will still need to take a PCR test regardless, and anyone who tests positive with any test must self-isolate, in line with the above guidelines. 
Frequently asked questions
Can we ask to see an employee’s positive test result to prove they have Covid? 
If someone is absent from work due to Covid-19 and evidence of their self-isolation is required, then employees are entitled to provide an “isolation note” from the NHS. Employees are not required to provide evidence of their test result.
 
An isolation note can be obtained from the NHS website, the NHS app, or by calling the NHS 111 service. 
 
There is also an online service employers can use to check whether an isolation note is valid. This service can be accessed here.
 
Employees can also be asked to share the evidence provided by the NHS Test and Trace service in England, or NHS Test, Trace, Protect service in Wales, with their employer, as evidence of isolation. 
 
In light of the announcement that it will no longer be a requirement to have a PCR test to confirm a positive lateral flow test, what can we do to ensure that an employee self-isolating as a result of a positive lateral flow test is being genuine? 
If an employee notifies their employer that they have tested positive for Covid-19, then the employer should support the employee to self-isolate. 
 
As current guidelines do not require an employee to provide a copy of their test result to their employer, there is an element of trust involved here. 
 
As above and as per the NHS website, if an employee tests positive for coronavirus they should:explain to their employer that they cannot come to workrequest an isolation note from the NHSshare the evidence provided by the NHS Test and Trace service in England, or NHS Test, Trace, Protect service in Wales, with their employer
Can we request a negative PCR test from an employee before they return to work after a period of self-isolation? 
There is no requirement for an employee to evidence a negative test prior to returning to work after a period of self-isolation. 
 
Provided the employee has completed their self-isolation period in line with government guidelines and feels well enough to return to the workplace, they should be allowed to do so. 
Can employees still receive statutory sick pay (SSP) from the first day of testing positive for Covid-19? 
Where an employee is incapable of working due to Coronavirus, they are entitled to receive Statutory Sick Pay (SSP) from their first day of absence. 
 
However, the entitlement to SSP from the first day of absence only applies if the total period of absence is 4 days or more.

SSP also applies from the first day for the duration of any legally required isolation period, such as a notification to isolate from test and trace.

This contrasts with the usual rules for SSP where the first three waiting days are unpaid for employees whose sickness is not due to coronavirus.

Sick Pay Support 
Small and medium-sized employers (less than 250 employees) can again claim refunds of SSP paid to employees for COVID-related absences from 21 December 2021.

The December 2021 rebate scheme is temporary, and the closure date will be announced this year. A maximum of two weeks of SSP can be claimed per employee using an online reclaims portal, which will be available on gov.uk from mid-January. 

While this is the maximum SSP reclaimable, employers can pay a higher level of sick pay.
 
If someone tests positive on a lateral flow test, and then can’t get booked in for a PCR for 48 hours for example, do they get sick pay for the 48 hours they think they’re positive on the lateral flow test? 
In line with the above guidelines, anyone who tests positive with any test must self-isolate. SSP will apply from the first day for the duration of any legally required isolation period, provided the total period of absence is 4 days or more.
Is the business within its rights to take disciplinary action against any employee who attends work knowingly having the virus? 
Employees should let their employer know immediately if they have been contacted by the NHS test and trace service, if they show symptoms of Covid-19, if they are awaiting a test result or if they have tested positive. 

Failure to tell their employer could be misconduct and included as a disciplinary offence as it puts others at risk. However, the employer must have sufficient evidence to demonstrate that the employee was aware that they were Covid-19 positive, prior to attending work. 

A full investigation to obtain the facts will be required before disciplinary action can be considered. Should you find yourself in this position, then please seek advice from your designated HR Advisor.  
Can we request evidence of an employee’s vaccination status? 
This information is sensitive personal health data and employers need to comply with the data protection rules.
 
Under GDPR legislation, an organisation should only hold and process data about staff provided that they either have an employee’s express consent, or provided they can justify this with at least one of the following legal reasons:The processing is necessary for the performance of a contract to which the data subject is a party;The processing is necessary for compliance with a legal obligation to which the data controller is subject;The processing is necessary to protect the vital interests of the data subject or of another natural person;The processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the data controller; orThe processing is necessary for the purposes of the legitimate interests pursued by the data controller or by a third party, except where such interests are overridden by the fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.Therefore, the reason for obtaining an employee’s vaccination status is crucial. 

We deem that the following may be valid reasons for enquiring after an employee’s vaccination status: If an employee is required to isolate, you may need to ask their vaccination status to decide if they can still attend work, or to determine how long they are required to isolate. If an employee is required to work a site where vaccination status is required (such as a Care Home), or if an employee requires a vaccination certificate to travel abroad as part of their work, then you may have justification to hold their status on file. In the examples above, the employer’s reason for seeking vaccination status can be justified because the data is necessary for compliance with a legal obligation to which the data controller is subject and/or is necessary to protect the vital interests of the data subject or of another natural person

If you are looking to obtain an employee’s vaccination status for any reason other than those above, then obtaining this data may be deemed unnecessary and therefore unlawful. Please seek further advice before proceeding.  
 
Please also note that employers should not treat employees any differently based on their vaccination status. There may be a risk of issues arising from the Equality Act (2010) if an employer asks an employee for their vaccination status and the employee deems that they are treated differently because of it. 
 
To avoid issues arising from both the Equality Act (2010), or from a GDPR perspective, it is best to only obtain vaccination status if absolutely critical.
If an employee attends work with what would seem to be covid symptoms, I assume that he/she can be sent home without pay and asked to take a test?
If an employee presents themselves as fit for work, but the employer deems that the employee is too unwell to be there, then the employer is within its rights to send the employee home in order to ensure the protection of others. 
 
However, by instructing an employee to go home, you are effectively placing them on “medical suspension”. This should not affect the employee’s pay. 
 
In such circumstances, the employee should remain on full pay with a stipulation that they are tested for Covid-19 at the earliest opportunity.
 
If the employee’s test returned a positive result, then they would revert to sick pay for the period of their self-isolation. 
 
If the employee’s test returned a negative result, then they should be allowed to return to the workplace.  
Can we request that all employees carry out covid lateral flow tests on a daily basis and report their outcome on the NHS website? 
If an employer plans to test employees for coronavirus, they should first consult with staff with a view of seeking their agreement to taking a test. Employers will need to explain to employees how testing would work, how staff would get their test results and what would happen if someone tested positive. The employer should also confirm how they plan to use, store and delete testing data, in line with GDPR. Finally, it is advised that these topics are covered within a workplace policy. 
 
If an employee does not agree to being tested, then the employer should listen to their concerns. It’s important for the employer to be flexible and try to find ways to resolve any issues but ultimately, employers are not able to make tests compulsory. Employers are not able to conduct random Covid-19 tests in the workplace either. 
 
It is important to ensure that regardless of testing, other health and safety control measures are in place, with a view of better controlling and reducing the risk of spread to staff.  
If you would like to speak to one of the team regarding the above, then please do not hesitate to contact your designated Advisor – we are all still working as usual. Alternatively, you can call 01427 420 403 or email hr@skaltd.co.uk