Q: What happens if an employee needs to self-isolate?

In accordance with government advice, if an employee has symptoms, however mild, they should self-isolate.

Since 7 August in Wales, 9 August in Scotland and 16 August in England and NI, people who have been fully vaccinated for more than two weeks no longer have to self-isolate if a close contact tests positive. Exemptions were in place for workers in certain sectors in England before 16 August. Fully vaccinated employees therefore do not have to self-isolate if they are a contact of someone who has tested positive for COVID-19. Instead, those in a household where someone has symptoms, or other close contacts of a positive coronavirus case are advised to get a free PCR test as soon as possible (see below). People who are not able to get vaccinated for medical reasons are not be legally required to self-isolate after contact with a positive case but they should also take a PCR test.

People should self-isolate if they test positive or are told to do so by NHS Test and Trace even if they are fully vaccinated. Those who have received a positive COVID-19 test result must self-isolate immediately and should not leave their house or go to work and employers should advise them to follow the Government's self-isolation advice and ask for a test

If the test is positive the person self-isolates and notifies NHS Test and Trace who then telephone contacts who may have caught the virus who can then also self-isolate and avoid passing it on to others.

If the test is negative, then people who are not fully vaccinated must still self-isolate. All people who are fully vaccinated who test negative are no longer required to self-isolate for 10 days.

Vaccinated individuals, as well as getting a PCR test, should consider taking certain steps to help reduce the risk of transmission, including:

  • limiting close contact with people outside their household, especially in enclosed spaces;
  • wearing a face covering in enclosed spaces and where they are unable to maintain social distancing;
  • limiting contact with anyone who is clinically extremely vulnerable; and
  • taking part in regular lateral flow testing.

Individuals should follow these precautions until 10 full days after their most recent contact with the person who has tested positive for Covid-19.

Testing and tracing

Currently, people in England, Scotland and Northern Ireland and Wales who test positive will be instructed by the NHS Test and Trace service or local public health teams to self-isolate for 10 days. They will be asked for the contact details of anyone they’ve been in close proximity to and about places they have visited in the 28 hours prior to their symptoms becoming apparent. The rest of their household does not have to self-isolate unless someone in the house becomes ill or tests positive.

Sick pay

Employees who have coronavirus, or who cannot work because they are self-isolating, can claim Statutory Sick Pay (SSP) from day one. This includes individuals who do not have symptoms, and those in the same household as others who display symptoms and are following government public health advice to self-isolate. The scheme has been temporarily extended to cover those instructed to self-isolate by NHS Test and Trace.

More information is available below.

Practical points

It is good practice for employers to treat self-isolation as sick leave and follow their usual sick pay policy (or agree for the time to be taken as holiday if the employee requests this). Employers could also advise employees to work from home if possible and continue to pay as normal. Treating the employee as being on paid sick leave or as working from home is advisable and justified. It makes sense, otherwise concerns about lost pay could lead to potentially infected people coming into work.

The CIPD also recommends that employers that offer contractual sick pay should provide this if a member of staff is asked to self-isolate even if they have no symptoms.


Q: What happens if my employees are contacted by the Test and Trace service?

If employees are contacted by the Test and Trace service and are identified as a contact of someone who has tested positive for COVID-19 they no longer need to self-isolate if:

  • at least 14 days have passed since they were fully vaccinated; or
  • they are below the age of 18 years ; or
  • they are part of an approved COVID-19 vaccine trial; or
  • are not able to get vaccinated for medical reasons.

The employees will not be legally required to self-isolate unless they have symptoms but should have a PCR test as soon as possible. Government guidance says they do not need to self-isolate while waiting for their test result but employers may wish to be more cautious than this and minimise employee’s exposure to others while the test result is awaited.

If one employee is contacted, it’s likely that more employees will also be contacted and so employers need a contingency action plan or policy in place in case employees receive a Test and Trace requests to self-isolate. Employers may also wish to update absence, sickness and disciplinary policies and create temporary cover plans if critical employees are affected. Any plans should align with the advice outlined on the government website.

If a large number of employees are contacted by Test and Trace and then test positive, employers may need to adapt to a sudden staff decrease at very short notice. Some workplaces will be able to go back to remote working, at least for the employees contacted by the service. Employees who can work from home can start doing so immediately (assuming they are not showing any symptoms and should be on sick leave).

Employers should plan and communicate the actions employees should take in two stages; before and after a positive test result and contact from Test and Trace.

Before Test and Trace contact

When someone first develops symptoms and orders a test, they are encouraged to alert the people that they have had close contact with in the past 48 hours. An employee should (but is not obliged to) ask the employer to alert the co-workers.

Employers should instruct employees to let them know immediately if they have been contacted by the service, show symptoms, are awaiting a test result or have tested positive. Failure to tell the employer could be misconduct and included as a disciplinary offence as it puts others at risk.

Unless there has been contact from the Test and Trace service the vaccinated co-workers and other close contacts of an employee do not officially have to self-isolate. Employers may still decide to send co-workers home as a precaution before they are tested. At the very least co-workers should avoid individuals who are highly clinically vulnerable and take extra care in social distancing and hygiene.

After Test and Trace contact

If an employee receives a positive test result they will self isolate and it is likely that their colleagues will be contacted by the Test and Trace service and employers should then plan for the following:

  • As soon as possible employees should share the formal notification provided by Test and Trace to show that they have been told to self-isolate and explain to their employer that this means that they cannot come to work.
  • Vaccinated individuals who are not legally required to self-isolate are advised to have a PCR test as soon as possible. There is no need for such individuals to self-isolate while waiting for their test result
  • Employees who are not already working at home should comply immediately with any request from the test and trace service to self-isolate, and they should not finish their normal working day or shift.
  • Unvaccinated employees should work from home, if they can, and be paid as usual. There may be some special projects that can be completed at home if their normal work is unavailable.
  • If the isolating person cannot work from home, the employer should outline if the employers’ company sick pay scheme covers the absence, or that SSP is in place. Employers can offer paid holiday if the employee prefers.
  • Employees in self-isolation are entitled to SSP for the 11 days regardless of symptoms (the isolation period is 10 days and begins on the day after symptoms start or if asymptomatic on the day of the test). SSP includes the day the symptoms start or the day on which they are tested and the subsequent 10 full days of isolation. There is also a special Test and Trace payment available for certain lower paid staff. Employers can use the formal Test and Trace notification supplied to them by the employee to claim the  employers’ SSP coronavirus rebate (see below).
  • Employees should update their employer if they develop symptoms and the usual rules and processes around sick leave and SSP apply (more information on coronavirus statutory sick pay can be found in the FAQs on managing employees who are self-isolating or who have symptoms).

Employers should maintain contact with workers in self-isolation and provide them with support including working from home if possible.

The government has asked employers to encourage employees to follow any request to self-isolate and obey the guidelines and has issued guidance for employers on how they can support the Test and Trace scheme. There is safer workplaces guidance along with sector-specific guidance and further NHS Test and Trace Workplace Guidance (UK) (with specific advice for Scotland).


Q: What happens if an employee is ‘pinged’ by the Test and Trace app?

Some rules about isolating remain in place in England even though those who are double vaccinated or under 18s identified as close contacts of positive coronavirus cases do not have to self-isolate but are advised to get a free polymerase chain reaction (PCR) test as soon as possible

If people test positive, it is crucial they self isolate when they have symptoms, they know their test result or they are told to do so by NHS Test and Trace. Employers must support their employees to self-isolate (subject to exception for critical staff as explained below).

The guidance giving anyone who is fully vaccinated an exemption from self-isolation applies from 7 August in Wales, 9 August in Scotland and 16 August in England (see more details below).


Q: Which employees are exempt from the need to self-isolate if notified by the NHS COVID-19 app under the ‘test to return to work’ scheme?

The government have said it is crucial that anyone alerted by the NHS app self isolates for 10 days. However:

  • Since 7 August in Wales, 9 August in Scotland and 16 August in England people who are double vaccinated are exempt from self-isolation, even if they have been in close contact with someone identified as having been infected by the virus. Instead, they are advised to take a PCR test after close contact.
  • There has been a list of exemptions from self-isolation under parallel schemes, for example for food supply workers and the test to return to work scheme for critical workers.
  • This daily testing scheme, for example for food supply workers, means staff who have received an NHS COVID-19 app alert to isolate, or have been called by Test and Trace, can continue working if they test negative. This scheme is still relevant for contacts of a positive case who are not exempt from self-isolation, for example the unvaccinated.

The exemption schemes were introduced on a case-by-case basis due to concerns that rising staff absences due to self-isolation alerts were putting pressure on certain sectors. Employers should check the schemes carefully as there are differences between them. People claiming an exemption will still need negative tests before resuming work which may include a PCR test as well as the daily negative lateral flow tests.

Daily contact testing
Daily contact testing was an alternative to self-isolation for contacts of confirmed COVID-19 cases. After 16 August 2021 many (fully vaccinated) people are exempt from self-isolation anyway, even if they have been in close contact with someone identified as a positive case. These people should take a PCR test.  However, there will be some people who are medically exempt or have not chosen vaccination and these people are not exempt from self-isolation.

Daily contact testing is thought to be as effective as self-isolation in limiting onward transmission. So, some employers in food distribution and production, emergency services, transport networks, defence, prisons, waste collection and energy as sectors that provide essential services have been able to take part in the workplace daily contact testing scheme. These employers get training in daily contact testing.

This involves taking a lateral flow test for everyday for 7 days at an approved testing site within the workplace. They must self-isolate until the first lateral flow test, except that they can travel to work to take that test.

If any test is positive or they develop symptoms, then they must self-isolate immediately and arrange a PCR test. Assuming there are negative test results staff can attend work. They should minimise the risk of onward transmission for 10 days after their exposure, such as avoiding poorly ventilated public places, although food shopping, exercise and responding to medical emergencies are allowed.

Staff in workplaces who are identified as the close contact of a positive case, can therefore choose to take part in daily contact testing, if they are not exempt from self-isolation. If they do not get tested at an approved testing site, then they will need to self-isolate at home.

Daily contact testing using lateral flow tests taken at home could also be possible for other people who are not fully vaccinated.

Although sites approved for workplace daily contact testing will be able to continue providing this service, the government will keep this under review.

Other exemptions

Other exemptions which are being implemented include the following:

Children: Children and young people under the age of 18 years identified as close contacts are no longer required to self-isolate after 16 August. Those turning 18 will be treated in the same way as children until the age of 18 years and 6 months, to allow them time to get vaccinated

Children under 5 who are close contacts of a positive case are advised to take a PCR test if the positive case is in their own household. If the PCR test is positive, they will need to self-isolate.

Nursing: Fully vaccinated nursing staff in England are already allowed to carry on working in exceptional circumstances if they are contacted by the COVID-19 app. Specific guidance states that where there is a ‘significant risk’ of harm to health or safety resulting from staff absence or a critical service cannot run then workers may be exempt from quarantine.

Food sector: The government announced on 22 July that workers in the food sector could avoid the need to self-isolate for 10 days if alerted as a contact of a coronavirus case. It is understood, unlike nurses, the workers do not have to be vaccinated to be part of the scheme but will still need a negative tests every day (presumably daily negative lateral flow tests and possibly a PCR test).

Police, fire and front line services: Under the scheme for food sector workers, these workers can avoid self-isolation following a coronavirus contact so long as they do not test positive. This scheme applies to workers in these sectors even if they are not double-vaccinated.

Critical sectors: On 22 July the government published a list of 16 sectors where workers will be eligible to avoid isolation if they undergo daily testing and their results are negative. These workers must have been double vaccinated, and their employer must have registered them with the government as having a vital role. This scheme is not an automatic exemption for all workers in the named sectors. To be eligible for exemption from self-isolation employers must have contacted the relevant government department and specified which workers they think should be exempt from self-isolation and that they are vaccinated with both vaccine doses.

The exemption does not apply if anyone tests positive for COVID-19 or develops symptoms and then they must still self-isolate.

Exemption letters
Employers in these sectors must contact the relevant government department so the government can decide whether the workers can be exempt. The criteria for exemptions depends upon employers showing the workers’ absence would cause a detrimental impact on an essential service. The employers affected will have letters from the government listing the exempt workers and the measures they need to follow.

Indoor hospitality workers including pubs, bars and restaurants and supermarket store workers are not yet on the exempt list but critical roles in more sectors will be considered on a case-by-case basis.


Q: Are support payments available for anyone required to self-isolate who cannot work from home?

Anyone required to self-isolate could get SSP for every day they are off work provided that they qualify. SSP does not apply if the person is self-isolating after entering or returning to the UK and does not have symptoms or need to self-isolate for any other reason.

In addition to SSP Test and Trace Support payments are available for people in England on low incomes who are required to self-isolate. The payments will not reduce any other benefits. In Wales please note there is an NHS Wales Self-Isolation Support Payment too.

The schemes only support people who are asked to self-isolate by NHS Test and Trace, including by the NHS COVID-19 app.

Eligibility requirements for support payment

To be eligible the person must live in England (or Wales) and:

  • have been asked to self-isolate by NHS Test and Trace
  • cannot work from home and will lose income as a result
  • be claiming at least one of the following benefits: universal credit, working tax credit, income-related employment and support allowance, income-based jobseeker’s allowance, income support, pension credit or housing benefit.
Overall eligibility is decided by local authorities based on low income. 
 
Application
To apply, the relevant information and documents include:
  • proof of a positive test
  • the notification from NHS Test and Trace
  • an NHS Test and Trace 8-digit code provided by the local authority as an account identification number (referred to as an ITS or CTAS number)
  • a bank statement
  • proof of employment or evidence of self-assessment returns for the self-employed, plus trading income and proof that the business delivers services that cannot be undertaken without social contact.
To apply through the app users must select the financial support button on the home screen. This links to a website to check eligibility. As the app is anonymous the application is dealt with separately following links on the website using NHS login details. Once there has been a confirmation email through this process people can apply for the NHS Test and Trace Support Payment from the local authority. 
 
The local authority can liaise with Test and Trace to confirm the individual has been asked to self-isolate, check for fraud and ensure the individual is unable to work from home.

Discretionary payment: For people not on one of the above benefits a £500 discretionary payment may apply. The local council will determine eligibility.

Parents: The £500 payments apply to parents or guardians of a child who has been told to self-isolate, as well as those who have been told to self-isolate by NHS Test and Trace themselves. The parent or guardian must need to take time off work and be unable to work from home; they must also lose income because of having to care for the child in their household while they are self-isolating. All the other eligibility criteria for a Test and Trace Support Payment or discretionary payment must be met.

The child must be 15 or under, or aged 25 or under with an Education, Health and Care (EHC) Plan. The child must have been told to self-isolate by NHS Test and Trace or by their education or childcare setting. The child’s NHS Test and Trace Account ID or a communication from the school telling the child to self-isolate will be needed.

Tax: Payments made under the Test and Trace Support Payment scheme are subject to income tax but not National Insurance contributions. HMRC will automatically recover the tax from the  pay of employed people with a change to the tax code.
 
Local authority applications: People can apply to the local authority or district council up to 42 days after the first day of the self-isolation period. An NHS Test and Trace Account ID is needed. Other proof includes evidence of a qualifying benefit, a bank statement and proof of employment. Self-employed people will need self-assessment returns, evidence of trading income and proof that their services cannot be undertaken without social contact. Self-employed people should report the payment on their Self-Assessment tax return.

More information is available on the government website.

Q: Is SSP payable on day one or day four of a COVID-related absence?

Since April 2020 SSP has been payable on day one of a COVID-related absence rather than day four. This means SSP is paid from the first day of an employee’s absence from work, where an employee is incapable, or deemed incapable, of doing work due to Coronavirus.

SSP entitlement is slightly complicated because:

  • SSP is not generally payable during the first three qualifying days of sickness, but this provision is still disapplied for Coronavirus cases.
  • Employees must still have a total period of incapacity for work of at least four days to be eligible for SSP even though it accrues from day one.
  • If someone is sick for three days or less and gets a negative COVID-19 test result their self-isolation ends and they would not be entitled to SSP.
  • By contrast an employee who is off sick and is subsequently diagnosed with Coronavirus, is entitled to SSP from the first day of sickness.
  • An employee who is ill for more than three days but does not have Coronavirus does not get SSP for the first three waiting days as their SSP entitlement is under the usual (non-COVID) rules.
Note that employers can no longer reclaim COVID-related SSP payments for absences after 30 September 2021. This creates the slightly illogical result that employers pay more SSP for COVID-related absences than for other absences, as the first three days remain payable. (See The Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020.)


Q: What are the differences between medical suspension, sickness absence and self-isolation?

Suspension on medical grounds

This type of suspension does not cover the coronavirus situation.

Suspension arises when an employer sends an employee home from work, usually on full pay. Most suspensions occur when employees are being investigated for misconduct and, more unusually, can be imposed for medical health or safety reasons, including during pregnancy to protect the employee.

The phrase 'suspension on medical grounds' is also used as a generic reference to an employer’s decision to suspend employees for medically related reasons to protect other staff. Provided this is brief and on full pay, the suspension is likely to be permissible (although strictly speaking it is not a statutory ‘medical suspension’). This is unlikely to arise during pandemic.

Suspension may arise if employees refuse to work from home, or do not follow precautions. There is an implied contractual duty to ensure health and safety of employees. Suspending an employee on full pay is likely to be deemed reasonable if there are rational grounds such as trying to prevent the spread of the virus to non-infected employees.

Sickness absence

Broadly speaking, sickness absence from work is absence that is attributed to sickness by the employee and accepted as such by the employer. In the current coronavirus context it appears that sickness absence will cover employees:

  • who test positive for the virus
  • with potential virus symptoms
  • who live with someone with symptoms or who tested positive
  • who are clinically extremely vulnerable, and
  • who self-isolate because they are following government advice or have been required to by NHS Test and Trace. 
  • with written notification of a medical procedure in hospital who have been advised to self-isolate before admission.

Employees who are clinically highly vulnerable, and those following government self-isolation advice (even if they have no symptoms), are therefore likely to be on sick leave even if they have no symptoms, depending on the circumstances.

Others may be included for example those in a support bubble with someone who has symptoms or tested positive for COVID-19.

Self-isolation

Self-isolation means staying at home and avoiding contact with other people in accordance with government advice. Employees with symptoms should apply for a test. Those who have been in close contact with an infected person must take a PCR test as soon as possible and do not need to self-isolate for 10 days provided that they are doubly vaccinated. Some of those who have travelled abroad may be required to self-isolate on their return to the UK (see the government website for more information).

The term 'self-isolation' is used generically and would also cover those doing so as a precaution following more distant contact with an infected person. Statutory sick pay (SSP) is payable to those with symptoms or who self-isolate on government advice. Following government legislation, this should now start on day one in coronavirus cases rather than after the usual first three days. More information is available on the government website and above.


Q: How does the Test and Trace app work?

The majority of COVID restrictions ended in in England on 19 July but the Test and Trace app, NHS COVID-19, remains in use in England and Wales. A Protect Scotland app is available in Scotland and a similar app is available in Northern Ireland. 

The apps work by alerting people when their phone registers that it has been in close contact with the mobile of someone who has tested positive for COVID-19. The system uses Bluetooth technology and a special algorithm to indicate a phone has been within two metres of an infected person’s phone for 15 minutes or more.

If someone has been in contact with someone who later tested positive, the app will notify you. To reflect the changing requirements to self-isolation app users identified as a close contact who confirm that they are double vaccinated or under 18 do not need to self-isolate and will be given advice to book a PCR test.

If someone is called by NHS Test and Trace and told they are a contact, they will be asked their age and their vaccination status. If using the NHS app, people will be asked to self-declare if they are under 18 or double vaccinated. If they are unvaccinated or test positive they must self-isolate for 10 days or less, depending on how long ago the contact with the infected person was. The app also has a countdown telling you when you can leave isolation.


Q: Can employers require employees to download the NHS Test and Trace app?

Downloading the app has never been compulsory. However, it remains a legal requirement for individuals to self-isolate when they test positive or are told to by NHS Test and Trace. Anyone who tests positive following the PCR test must self-isolate, irrespective of their vaccination status.

NHS Test and Trace should not tell people to self-isolate just because they have been in contact with a positive case as long as they are:

  • fully vaccinated with 14 days having passed since their final dose of vaccine 
  • under 18 years and 6 months old
  • taking part in a COVID-19 vaccine trial
  • not able to get vaccinated for medical reasons.
After contact with a positive case vaccinated people who do not have to self-isolate should still get a PCR test. Until a negative result it is sensible to follow advice on avoiding spreading the virus and limiting contact with those at higher risk.

Encouraging employees to download the app does not mean that the employee will actually use it and there ae other issues, including the following:

  • If the workforce includes a variety of contractors, then downloading the app may be harder to enforce, although downloading it could be specified in the relevant contractor’s agreements.
  • Which device should be used for the app - work or private mobiles or both? There is little benefit to installing the app on work mobiles if employees do not carry this device at the weekends or in the evening.
  • What happens in a sector where workers are not permitted to carry their mobiles at work?
  • The app is only one aspect of reducing virus risk, vaccination, regular testing, voluntary social distancing, avoiding crowded areas and hygiene advice remain part of overall risk reduction.
  • The extensive collection of personal data must be processed safely, securely and fairly. Some employees may have concerns about data privacy and the potential for data to be used for other purposes, and be reluctant to download the app anyway.
  • The NHS and the government are primarily responsible for safeguarding data but requiring workers to download the app may make the employer theoretically a joint controller for the purposes of data protection law even though no personal data would be available to the employer. Employers should always inform their employees of the reasoning behind the collection of any COVID-19 data and only collect data that is necessary for the purposes of the NHS Test and Trace scheme and have clear and accessible privacy information in place.
  • If a worker receives an alert that they should self-isolate, the employer will need to deal with this requirement with potential disciplinary consequences if the employee does not do so.
  • People with certain older mobile devices may not be able to use it.

Employers need to evaluate these factors and may decide to simply to promote the app as part of managing risk in the organisation's COVID management workplace strategy and highlight the benefits without compulsorily requiring the employees to download it.

The key consideration for employers is to prioritise the health and safety of their workforce which may include use of the app as well as a number of other measures. The current government advice emphasises COVID-19 risk assessments, adequate ventilation, cleaning, turning away people with symptoms, enabling voluntary check-ins using the NHS COVID-19 App, communication, training and vaccination where possible.


Q: Should employers include the use of the Test and Trace service as part of their risk assessments?

Employers’ risk assessments and coronavirus planning should take into account the Test and Trace system.

Employers should have plans in place which can be activated if an employee is potentially infected. This should encompass plans which cover what to do if staff levels cannot be maintained due to a group of employees needing to self-isolate.

Employers should understand how the scheme evolves and keep checking for current government advice and updates.

Q: Our employee says he has been told for the third time to self-isolate under Test and Trace; should we ask for proof? Should we ask him to take the time as annual leave?

Some employees may be told to self-isolate multiple times under Test and Trace.

The Test and Trace service notification, confirming someone must self-isolate, can be shown to employers. In the vast majority of cases employers can accept employees' confirmation of having been advised to self-isolate or the Test and Trace notification. If the employer has reason to mistrust the employee, then the employer could ask for further evidence – for instance, screenshots from the tracing app notification.


Q: We have casual staff and those on zero hours contracts who have been told to self-isolate by the Test and Trace service; what should we do about pay?

Depending on their precise employment status some of those workers who operate on a zero hours or casual basis who have been told to self-isolate will be eligible for SSP, but others will not.

SSP is only available for those who are paid under the PAYE system and who pay Class 1 National insurance. To be eligible for SSP average weekly earnings must be at least £120 per week. This figure is based on what is known as the Lower Earnings Limit.

Casual and zero-hours contract workers who often have more than one job cannot combine earnings to meet this threshold and those who earn less than £120 per week are not entitled to SSP. Zero hours contract workers who earn too little or who have just started a new casual engagement will probably not be entitled to SSP but may be entitled to welfare benefits.

Eligible employees and workers must receive any SSP due to them from their first day of self-isolation.

SSP can only be paid for the days when the casual or zero-hours worker is required to perform work. Employers can simply agree that other days will count as qualifying days, provided there is at least one qualifying day in every week.

If SSP is payable because of coronavirus up to two weeks can be reclaimed by employers, including sums paid to eligible casual and zero hours workers; see the FAQ on pay for further detail.

A payment of £500 may be available to some who have been told to self-isolate by Test and Trace - see the question Q: In the case of a Test and Trace notification or a workplace outbreak is there any support available? above.


Q: Can we keep records about which employees have been asked to self-isolate or take a test?

Employers can keep records about which employees have been asked to self-isolate or take a test. Data protection law allows employers to take the necessary steps to keep staff and the public safe especially during a pandemic.

If an employee contracted coronavirus at the workplace employers must report this to the Health and Safety Executive.

You can also refer to the FAQ on data protection below and our Protecting your workforce Q: What systems do we need to put in place for handling data from testing?


Q: Do data protection laws prevent employers processing data about employees who are potentially or actually infected?

Data protection laws do not prevent employers processing data about employees who are potentially or actually infected. Data protection law enables employers to take steps to keep staff and public safe during the pandemic. All employers must do is be responsible with people’s personal data and handle it carefully for legitimate reasons.

Personal data about coronavirus testing health is classed as sensitive, special category data so it must be handled fairly, transparently and lawfully. Employers must simply ensure their record keeping under the GDPR and the Data Protection Act 2018 does not involve collecting or share unnecessary data.

Employers must have a lawful basis for their processing of test results. In most circumstances this will be public task or legitimate interests for public sector and private sector employers. Where employers will need to process data about someone with suspected coronavirus, there is also a condition that allows them to comply with health and safety obligations.

The health data of a potentially infected employee should be kept to a minimum. This means not collecting unnecessary information, for example about any underlying conditions an employee may have. The data should also be handled securely remembering employee’s confidentiality. The minimum amount of data is probably:

  • if an employee tested positive and when
  • lists of other employees who tested positive and when.

Any lists must not lead to detrimental treatment of employees affected. One way of demonstrating that processing of test data is compliant is through a data protection impact assessment looking at activity proposed and risk. Basically, employers need to show that the proposed processing of coronavirus-related data is necessary and proportionate to protect other’s health, with mitigation steps to counter any risks.

Transparency

Employers should be clear and open with employees about why personal health data about coronavirus tests and symptoms is needed and how long it will be kept for. Staff should know who the data will be shared with and be able to discuss any concerns. To ensure staff are able to exercise their right of access, completely secure portals that allow staff to manage and update their own personal data may be appropriate.

Privacy policies and information may need amending as well. For further information see our Q: What systems do we need to put in place for handling data from testing?


Q: If an employee was asked to self-isolate or has Coronavirus, would it breach privacy to communicate this to the rest of the employees?

If an employee is asked to self-isolate or has coronavirus this must be communicated to the rest of the employees and, if done correctly, will not give rise to privacy problems. An employer has both a duty of mutual trust and confidence towards all employees and a duty to take care of all employees’ health and safety.

Employers must keep staff informed about potential or confirmed COVID-19 cases amongst other staff. Data protection does not prevent employers honouring their duty to the health and safety of all employees or sharing data with authorities for public health purposes. There are special exemptions in the Data Protection Act 2018 which enable employers to share information where there are risks to the wider public – overall employers must take proportionate and sensible approach.

Under the Act, personal data concerning health is 'special category data' and requires more protection. You should avoid naming individuals if possible and you should not provide more information than is necessary.


DISCLAIMER: The materials provided here are for general information purposes and do not constitute legal or other professional advice. While the information is considered to be true and correct at the date of publication, changes in circumstances may impact the accuracy and validity of the information. The CIPD is not responsible for any errors or omissions, or for any action or decision taken as a result of using the guidance. You should consult the government website for the very latest information or contact a professional adviser for legal or other advice where appropriate.


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