This briefing was updated on 1 October 2020.
The questions below cover key considerations for employers in relation to the NHS Test and Trace scheme. We have also produced a Q&A document covering key considerations for businesses in relation to their customers under the Test and Trace scheme, which is available here.
Test and Trace: ten questions for employers
This briefing was updated on 1 October 2020.
- How does the NHS Test and Trace scheme work?
- Does an employee have to tell us they have Coronavirus symptoms?
- If an employee has symptoms or has tested positive, which colleagues can we tell?
- Can we require employees to undergo checks for symptoms, such as temperature checks, or take regular tests?
- What steps should we take if an employee tells us they have been asked to isolate by NHS Test and Trace?
- Can we review CCTV records to see who an employee has been in contact with?
- What information might we need to provide to NHS Test and Trace?
- What should employees be paid during isolation?
- What steps should we take if an employee tells us that they have been in close contact with someone outside work who has developed symptoms (but they have not yet been contacted by Test and Trace)?
- Can we keep lists of employees who have experienced symptoms or tested positive?
How does the NHS Test and Trace scheme work?
Anyone who experiences Coronavirus symptoms is advised by the Test and Trace guidance to self-isolate immediately and take a test within 5 days. If the test is positive, the individual will be contacted by Test and Trace and asked to supply details of anyone with whom they have been in recent close contact. Those contacts will then be contacted by Test and Trace and advised to self-isolate for 14 days from the day they last had contact with that individual.
It is a legal requirement that the individual self-isolates as required by Test and Trace, and failure to do so is a criminal offence attracting fines starting at £1,000 (and up to £10,000 for repeat offences). If their job has to be done at the workplace rather than being carried out remotely, the individual is legally obliged to tell their employer that they are self-isolating, and it is a criminal offence not to do so (attracting a fixed fine of £50).
Employees who use the NHS Covid-19 App may be notified by the app that they have been in close contact with an individual who has tested positive, and that they should self-isolate, but they are not required to let their employer know. However, if you are aware that an employee has been advised by the app to self-isolate, then you should support them to do so (see further below).
If an employee has symptoms or has tested positive, which colleagues can we tell?
The Information Commissioner's Office (ICO) has issued guidance on data protection and Coronavirus, which recommends that staff should be kept informed about possible cases of the virus amongst their colleagues, but individuals who have or may have the virus should not be named. You should only tell colleagues who have been in contact with the potentially infected person, and not the workforce more widely.
In some cases, it may be that employees are able to work out who the affected employee is, particularly if they have been split into small groups to work. In most cases, the duty to protect the health and safety of your employees by informing them that they may have been in contact with the virus will over-ride the confidentiality risk, but each situation should be considered individually.
Can we require employees to undergo checks for symptoms, such as temperature checks, or take regular tests?
Some employers are introducing these types of measures following a workplace risk assessment. The results of any checks or tests would have to be processed in accordance with the data protection rules relating to special category data. For further details about these rules please see our briefing on Protecting Personal Data While Protecting Your Employees.
The ICO guidance advises employers to consider whether checks or tests are necessary, which will depend on various factors including the type of business and the nature of the employee's work. Information collected should be kept securely, with access limited to those who need to see it, and employees should be told about what information is collected and why, how it is kept and who it is shared with. This could be done by updating the staff privacy notice.
The Government has published guidance on employer testing, specifically covering virus and antibody testing. This guidance recommends employers establish the scope and implications of the testing programme in advance, including consideration of who will be tested and how often, how the results will be used, and policies on absence and self-isolation.
What steps should we take if an employee tells us they have been asked to isolate by NHS Test and Trace?
The Government has published guidance for employers on the Test and Trace scheme. This states that employers should request workers to self-isolate if they have been asked to do so by Test and Trace, and support them when in isolation. It recommends that employers maintain contact with employees who are isolating.
This guidance also suggests allowing such employees to work from home if possible, which the guidance suggests may involve finding them alternative work temporarily (there is no legal obligation to do this). The guidance also suggests that employers may allow employees to use holiday instead of sick pay if they wish (see below in relation to sick pay).
An employer who knowingly requires an employee to attend work when they have been required to self-isolate following a notification from Test and Trace is committing a criminal offence (with a fine of £1000, increasing to up to £10,000 for repeat offences), and any individual directors or managers who are involved may also be individually liable.
The Test and Trace service will contact colleagues who have been in close contact with the employee who tested positive. For this reason, you may wish to encourage employees to be clear on issues such as social distancing measures in place and which individuals they were actually near, to seek to reduce the risk of the net being cast unduly wide by the Test and Trace service. Many businesses are very concerned about the risk of operations being, effectively, shut down for two weeks as a result of Test and Trace.
In any event, as soon as you are aware that a colleague has symptoms or has tested positive, it is advisable to take your own steps to establish who they have been in close contact with and put in place appropriate arrangements to protect them and other colleagues.
Can we review CCTV records to see who an employee has been in contact with?
Yes, but only if this is necessary, and then it should be limited. The ICO guidance recommends that employers consider whether this is justified, or whether there is a less intrusive way to establish who the employee has been in contact with. Any CCTV review should be limited to the minimum necessary to find out who the employee had contact with at work.
What information might we need to provide to NHS Test and Trace?
The Government guidance on working safely has recently been updated to reflect the Test and Trace scheme. It recommends that employers keep a temporary record of staff shift patterns for 21 days. In many cases, employers will be keeping these records in any event. As set out above, given the concerns about the business shutdown implications, you may wish to keep records that allow you to determine which individuals might reasonably have come into contact with whom rather than just who was on site that day.
Existing staff privacy notices should be updated to reflect the information which may be provided to Test and Trace, including information about hours worked.
What should employees be paid during isolation?
Employees may have to isolate for a number of reasons: self-isolation because they have symptoms; isolation because a household member has symptoms or isolation following a notification from Test and Trace. In any of these situations the employee is entitled to statutory sick pay (SSP) if they cannot work from home. SSP is payable from day one of isolation, provided the isolation lasts for at least four calendar days. They should provide evidence which consists of the online NHS isolation note, if isolating because they or a family member has symptoms, or otherwise the Test and Trace notification.
If enhanced sick pay is available under the employment contract or any policy, then the employee may be entitled to receive this depending on whether they are unwell and on the wording of the policy.
What steps should we take if an employee tells us that they have been in close contact with someone outside work who has developed symptoms (but they have not yet been contacted by Test and Trace)?
In this situation, the employee is not required to isolate (if the person with symptoms was not in their household), but you should consider what steps should be taken to protect other employees, for example minimising the contact this employee has with them. You should also remind the employee of the importance of social distancing and hygiene measures, and ask them to keep you informed immediately of any further developments.
Can we keep lists of employees who have experienced symptoms or tested positive?
Yes, provided this is necessary and the information is kept securely and only for as long as is needed. Again, this information is special category data, so as referred to above, additional rules apply in relation to its collection, accountability, the way it is kept and who it is shared with: the information should not be used for any other purpose, and access should be limited only to individuals who need to see it. Employees should also be told that this information is being kept and why, who it is shared with and how it is kept.
This note covers the law and guidance in England, as at 1 October 2020. Different rules may apply in other parts of the UK.