This guide outlines the key facts you need to know about furlough leave
Q: What do employers need to know about the track and trace service and should they adjust their risk assessments?
Anyone experiencing symptoms, however mild, should request a test as soon as possible via the NHS website or by calling 119. If an employer knows an employee has not done this, they should advise them to do so.
If an employee receives a positive result they will be asked to log on to the NHS website to provide their details, who they live with, places recently visited, and contact details of their close contacts in the 48 hours before symptoms started. The track and trace service then provides a notification confirming that the individual must self-isolate which can then be shown to employer.
The NHS trained contact tracers will follow up and alert the contacts by email or telephone, informing them to self-isolate. This may affect a number of employees who work together if one colleague has tested positive.
The track and trace service does not yet include the contact tracing app, which was trialled on the Isle of Wight. The current service relies on all those with coronavirus symptoms getting in touch to be tested and supplying their details.
Please note, the track and trace service is called NHS Test and Trace in England, 'Test and Protect' in Scotland, or 'Test, trace, protect' in Wales.
Risk assessments for each workplace should include an assessment of the risk of coronavirus to everyone. Employers’ risk assessments and coronavirus planning should take into account the track and trace system. Where working from home is not possible, employers should try to minimise the risk in accordance with their risk assessment and the Government’s sector-specific guidance.
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.
Track and trace will change again once the app is released. This will work by Bluetooth signals to detect when two phones come close to one other. Anyone unwell with coronavirus symptoms can notify the app, which then informs other users.
Employers should understand how the scheme evolves and keep checking for current government advice and updates. For details of sick leave length, pay and reimbursement for coronavirus-related absences, see our FAQs on periods of self-isolation and on payment of SSP.
Q: Do we pay SSP to employees who have been told by the test and trace service they need to self-isolate?
Employees who are contacted through test and trace and told to self-isolate can work from home and be paid as normal if they are well enough to do so. Those who cannot work from home can be paid SSP from day one of their absence. Employees who are self-isolating need to follow their workplace’s usual sickness reporting process.
Statutory Sick Pay (SSP)
SSP (which is currently worth £95.85 per week) can be paid to a range of employees who need to self-isolate for example because they:
- have coronavirus
- have coronavirus symptoms, for example a high temperature, new continuous cough or loss of taste and smell
- someone in their household has coronavirus symptoms
- are in the same household someone who has symptoms and then develop symptoms themselves
- been told to 'shield' (and are therefore unable to attend their workplace) by the NHS because they are extremely clinically vulnerable due to an underlying health condition
- been told to self-isolate by a doctor, NHS 111 or the 'test and trace' service, because they’ve been in close contact with someone who tested positive.
Note that although those who are shielding in line with government or NHS guidance are entitled to SSP the employer may also be able to opt to furlough them provided the relevant time limits are complied with.
Contractual Sick Pay
Employers who offer sick pay in excess of SSP will have to check their policies. Most employers’ existing policies will not be drafted to cover the concept of self-isolation, so they can offer SSP instead. However, many employers will treat the time off as sick leave and provide contractual pay in the usual way even though they do not have to.
Eligible employers can claim reimbursement of 14 days’ SSP per employee for coronavirus-related absences, including absences due to self-isolation in accordance with test and trace.
The special Coronavirus SSP rebate scheme only applies to small and medium-sized employers i.e. those with under 250 employees as at 28 February 2020.
The reimbursement covers payments for up to two weeks of SSP for employees unable to work because they have coronavirus and are self-isolating and unable to work from home or are shielding because they are at high risk. There is an online portal to make a claim.
Changes to SSP rules
Normal SSP rules have been temporarily amended by three sets of SSP Coronavirus amendment regulations. The usual waiting period of three days before SSP becomes payable do not apply where the absence is due to the pandemic. SSP is therefore paid from the first day of sickness absence, not the fourth day, for staff who have coronavirus or live with some-one who does and have to self-isolate.
Under normal rules, employees can 'self-certify' for the first 7 days off work. The Government guidance is that those with symptoms or who are advised to stay at home can get an isolation note from NHS 111 online, rather than visiting a GP. For coronavirus cases this replaces fit or sick notes normally used after seven days of absence.
Q: Our employee has been contacted by the test and trace service and they need to self-isolate; should we put them on sick leave?
Those contacted by the test and trace system have been exposed to someone who has tested positive for the virus. They should remain in self-isolation for up to 14 days, even if their test is negative. The virus may not be detectable when the test took place. Everyone must continue self-isolation if someone in their home tests positive or has symptoms and has not been tested.
Any employees contacted by the track and trace service can be placed on sick leave. Track and trace does not yet change the current guidance which is that employers who can arrange for working from home should still do that where possible.
Q: Do we need to give workers paid time off to go for a test?
Employers should give employees time off to go for a test. Whether employees should be paid for time off to go for a test is not addressed in the guidance. Generally, there is no statutory right to paid time off to attend medical appointments. However sometimes there is a contractual right to time off.
These are exceptional times in which home working is still widely advised where possible. The Government and the NHS are advising people to self-isolate in a number of situations, including waiting for a test result, being in the same household as someone with symptoms, or being contacted by the test and trace service. Therefore, if an employee has reason to believe they have been exposed to the virus the employer should send them home anyway to protect the workplace and comply with their health and safety duties towards other staff and customers.
The sensible approach seems to be to allow the time off and to pay for this time or to trigger the start of SSP if possible. SSP will be available for self-isolation days waiting for a test result.
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 track and trace. Three consecutive requests is likely to be relatively unusual, however, precautionary self-isolation may happen more than once. Exposure to different people with COVID-19 will increase as lockdown lifts. Some workplaces, local areas, families or friendship groups may have individuals who are infected and in such localised outbreaks, employees are more likely to have been exposed to someone who is infected.
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, once this part of the scheme becomes operational.
An employee on one or more self-isolations can take annual leave rather than SSP if they wish. The Government have confirmed this. Although the employer can offer this as an option the employee should freely choose to do this. Employers may also offer to pay salary as normal or find tasks for the employee to do it home provided the employee has no symptoms.
Q: When the test and trace app is operational should employers make it mandatory for employees to download it on their work mobile?
Employers should probably not make it mandatory for employees to download the app once it becomes available, unless the Government make it mandatory (which is unlikely).
The efficacy of app needs widespread take-up by the public at large so there is a moral argument to download it. However, this is matter of individual employee choice. If employers to try and force it would be controversial and probably unreasonable. The app will work during employees’ private time. Although limited steps to monitor employees’ activity at work is permissible, monitoring outside work is likely to be unnecessary and disproportionate.
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?
High numbers of workers operate on a zero hours or casual basis. Depending on their precise employment status some of those workers who have been told to self-isolate will be eligible for SSP, but others will not.
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 above for further detail.
Qualification for SSP for casual and zero-hours contract workers can be complex. SSP is not available for those who are self-employed. 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 (£118 per week before 6 April 2020). 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. So 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. This can arise in several situations including having coronavirus symptoms or being told to isolate because someone in their household has coronavirus symptoms. See the FAQ on SSP above for more information.
SSP can only be paid for the days when the casual or zero-hours contracts 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.
Q: Can we keep records about which employees have been asked to self-isolate or take a test?
The Department of Health and Social Care strongly advises employees to inform the employer as soon as they test positive for coronavirus. This is because employers must urgently manage any impact on the workplace which may include asking other employees to be tested if they have been in close contact with the infected person.
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, as required by the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (Riddor).
You can also refer to the FAQ on data protection below.
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 legal reason for their processing of test results. The most likely relevant condition is that employers need to process the data about someone with suspected coronavirus to comply with health and safety obligations. Other reasons include public tasks or legitimate interests for some public sector and some private employers.
The health data of a potentially infected employee should be kept to a minimum. This means not collecting unnecessary information that is not needed, for example about underlying conditions any 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.
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.
Q: What potential problems may employers face with the test and trace system?
The test and trace system depends on people being honest that they have received self-isolation advice. The minimum requirement for pay during self-isolation is Statutory Sick Pay (currently worth £95.85 per week). Some employees who are busy at work or who only receive SSP may have a financial disincentive to self-isolate even when contacted and asked to do so. The unions have warned that levels of SSP may stop people acting on requests to self-isolate and may put others at risk by continuing to work. The Government have warned that if the initial voluntary system is not respected, fines could be introduced for those who fail to comply.
Other potential problems include:
- There is a risk that some employers may be unable to operate safely if too many staff have to self-isolate at the same time, due to an infected colleague. This will affect employers who cannot operate with staff working from home.
- Employees who are contacted several times in succession by the track and trace system will be reluctant to take repeated periods of 14-day self-isolation on reduced pay. See the FAQ on employees being asked to self-isolate multiple times under track and trace above for more information.
- Testing is currently limited to those with symptoms. Employees required to self-isolate for 14 days, possibly repeatedly, cannot be tested if they are not displaying symptoms in order to return to work more promptly. Employers may consider paying for private testing, although employers should be cautious about this approach as it is not known whether all these services are reliable, and employees’ consent would be required.
- Other potential abuses include false information or troublemakers attempting to manipulate the scheme. Hopefully there will be few such cases, but an employee might maliciously name someone as having been a close contact to force them to self-isolate. Others might attempt to abuse the scheme to get more time off.
Q: What happens if a large number of my employees are contacted by the test and trace service?
If one employee is contacted it’s likely that more employees will also be contacted. The NHS test and trace service does not change the existing guidance about working from home so this should be followed as a first measure for all employees where possible. Employers’ duties to protect the health and safety of staff and others (including agency workers, contractors, volunteers, customers, suppliers and other visitors) remains paramount.
Plans, policies and assessments
Employers need a contingency action plan or policy in place now in case an employee receives a test and trace request 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 large number of employees are contacted by test and trace, 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 contact from the test and trace service
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.
Employees should instruct employers 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.
Before contact from the test and trace service the co-workers and other close contacts of that employee do not officially have to self-isolate yet. Employers may decide to send co-workers home as a precaution. At the very least co-workers should:
- avoid individuals who are at highly clinically vulnerable, for example because they have pre-existing medical conditions, such as respiratory issues
- take extra care in social distancing and hygiene and in watching out for symptoms
- wait to see if the person who has symptoms has a positive test result and if that person gets notification from the NHS test and trace service explaining they need to self-isolate.
Workers who have symptoms of coronavirus or live with someone with symptoms can get an isolation note through NHS111 online.
After test and trace contact
If the person with symptoms has a positive test result, the test and trace service will ask for information about their close recent contacts and send the formal notification to contacts who need to self-isolate.
If an employee receives a positive test result it is likely that their colleagues will be contacted by the test and trace service and so employers should 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.
- 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. The period of self-isolation will be for 14 days from the point of most recent contact with the person who has tested positive for coronavirus.
- 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, employers 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.
- Any reluctant employees who insist they are not a risk and try to attend the workplace and work in contravention of a test and trace notice could be disciplined for misconduct.
- Employees in self-isolation via test and trace are entitled to SSP for the 14 day isolation period regardless of symptoms. Employers can use the formal test and trace notification supplied to them by the employee to claim the employers’ SSP coronavirus rebate. Employers with fewer than 250 employees on 28 February 2020, and who pay out SSP due to absences related to the virus can recover up to 14 days SSP per employee.
- 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 are 5 steps to working safely, safer workplaces guidance along with sector-specific guidance and further NHS Test and Trace Workplace Guidance (UK) (with specific advice for Scotland).
Q: In the case of a serious workplace outbreak is there any support available?
If numerous cases of coronavirus appear in a workplace and there is a serious risk of a local outbreak, employers are advised to initially contact their local authority. An outbreak control team may be assigned to help some employers manage a large outbreak if necessary. The local public health experts, who will liaise as necessary with the employers, will also get involved if outbreaks occur in health or care settings including hospital or care home, prisons, special needs schools and any other setting where there is a risk of a local outbreak.
Some workers may be self-isolating because they are a member of the same household as someone who has symptoms or has tested positive for coronavirus and so the workplace will not necessarily be the source and may not have widespread infection. Workers who think workplace contacts have triggered successive test and trace notifications are advised by the Government to ask their employer what further mitigating actions could be taken to reduce the risk such as using screens, or putting staff in cohorts to reduce the number of people each person has contact with.
More information is available on the Government website.
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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