NHS Test and Trace – Guidance for Employers
The NHS test and trace service forms a central part of the government’s coronavirus (COVID-19) recovery strategy. Its implementation is set to help the UK return to some form of normal as soon as possible which still allows safeguards to protect the NHS.
The NHS test and trace service:
· provides testing for anyone who has symptoms of coronavirus to find out if they have the virus
· gets in touch with anyone who has had a positive test result to help them share information about any close recent contacts they have had
· alerts those contacts, where necessary, and notifies them they need to self-isolate to help stop the spread of the virus
The scheme is currently being trialled in the Isle of White, where approximately 60% of the residents have downloaded the app. Although as we understand the scheme did not run as smoothly as predicted in the beginning stages with issues in the technology and the app not being available on older handsets. However, it is understood technology experts were working hard to fix the issues and ‘the view of the health secretary and those working on the app is that it is progressing well’. The full functionality of a smooth-running technical UK is yet to be seen so we won’t hold our breath.
Once the app is launched nationwide, it is predicted that the service will play a vital role in providing an early warning if COVID-19 activity is increasing locally, regionally or nationally. This information will then be used to inform the government’s approach to stop the spread of the virus and plan further strategies moving forward.
The Government has released guidance for employers and business in order that they too can play their part in the programme. The full guidance can be accessed here. The guidance should also be used in conjunction with Working safely during coronavirus (COVID-19).
Guidance for employers
The role of employers
The Government as indicated by releasing the guidance that they are expecting employers to play a vital role in the efficiency of the app by:
· making their workplaces as safe as possible
· encouraging workers to heed any notifications to self-isolate and supporting them when in isolation
Although this may seem disruptive for businesses, it is less disruptive than an outbreak of COVID-19 in the workplace will be, and far less disruptive than periods in lockdown. To facilitate the NHS test and trace service, employers should encourage workers to heed any notifications to self-isolate and provide support to these individuals when in isolation. The Guidance infers that employers should not be quick to discipline employees who are isolating as a result of contact through the app as this has the potential to undermine the scheme if employees turn up to work in fear of reprisal which has the ability to increase the spread of the virus. The last thing anyone in the UK wants is a second peak. Our fridges could not cope, nor could our livers.
Therefore, it is important the employers continue to protect the health and safety both of their workers and of other people who may be affected by their business, for example agency workers, contractors, volunteers, customers, suppliers and other visitors.
Employer have a statutory obligation to follow health and safety workplace guidance for their sector such as:
· making every reasonable effort to enable working from home as a first option
· where working from home isn’t possible, identifying sensible measures to control the risks in the workplace
· keeping the workplace clean, maintaining safe working separation, and preventing transmission through unnecessary touching of potentially contaminated surfaces
The rules on safe working environments are applicable when referring to allowing employees to self-isolate. The Government’s Guidance is still that where people can work from home they should do so. Alternatively, where employees are returning to work, employers should be minded of the guidance on social distancing and health and safety. The measures employers put in place to maintain social distancing will depend on their individual business circumstances, including their working environment, the size of the site and the number of workers. The NHS test and trace service does not change the existing guidance about working from home wherever possible.
We have already drafted a blog on frequently asked questions on returning to work which looks at health and safety at work and can be accessed here.
Workplace risk
COVID-19 is a new risk and unprecedented risk (a word that has been entirely overused this year) but that must be incorporated into workplace risk assessments. A failure to do so will most likely be a breach of the health and safety legislation which can attract both civil and criminal liability for companies. Employers must therefore carry out a COVID-19 risk assessment if they have not already done so.
The HSE has published guidance to help you conduct a risk assessment.
‘Employers have a duty to consult their workers, and unions where applicable, as part of their risk assessment. Involving workers in this will help build trust and confidence that all reasonably practicable steps are being taken to reduce risks of COVID-19, so that people can return to work safely. Employers should share the risk assessment with workers and consider publishing the risk assessment on their website.’
The NHS test and trace service supplements the risk mitigation measures taken by employers by identifying people who have had close recent contact with someone who has tested positive for coronavirus and advising them to self-isolate. This will reduce the risk of a rise in infections among the general population.
There does not appear to be any obligation that downloading the app is mandatory, and it would not appear that employers can force their employees to download the same. This potentially gives rise to Human Rights arguments although this again is a completely new area and given its immaturity it has not been heard in the courts. We would advise that employees have policies in place and advise their employees to download the app, but it does not appear that employers can go any further than that. Not at this stage anyway.
Multiple outbreaks in the workplace
In the unfortunate even that there is more than one case of COVID-19 associated with a particular workplace, employers advised that they should contact their local health protection team to report the suspected outbreak.
Find your local health protection team.
Supporting workers who need to self-isolate
Employers should support workers who need to self-isolate and must not ask them to attend the workplace. Should an employer do so, they will most likely be in breach of health and safety legislation and may also find themselves liable for breach of the implied term of mutual trust and confidence.
Workers will be told to isolate because they:
· have coronavirus symptoms and are awaiting a test result
· have tested positive for coronavirus
· are a member of the same household as someone who has symptoms or has tested positive for coronavirus
· have been in close recent contact with someone who has tested positive and received a notification to self-isolate from NHS test and trace.
Employers should continue to communicate with workers in self-isolation and provide support. This includes allowing people to work from home if they remain well and if it is practicable to do so. This might include finding alternative work that can be completed at home during the period of self-isolation.
If people can’t work from home, employers must ensure any self-isolating employee is receiving sick pay and give them the option to use their paid leave days if they prefer. Employees in self-isolation are entitled to Statutory Sick Pay for every day they are in isolation, as long as they meet the eligibility conditions.
It is understood that the NHS test and trace service will provide a notification that can be used as evidence that someone has been told to self-isolate. Employers will need this evidence if they are going to claim a rebate for Statutory Sick Pay.
The guidance states that an employee can ask to take their paid holiday for the time they’re off work, entitling them to full pay for the duration of their leave, as opposed to Statutory Sick Pay, if they choose. It would be advisable that this guidance is followed, and no such request should be unreasonably refused, as this in turn may also result in liability.
The NHS test and trace service will follow up with people who need to self-isolate because they have had close recent contact with someone, who might be a colleague, who has tested positive for coronavirus.
When someone first develops symptoms and orders a test, they will be encouraged to alert the people that they have had close contact with in the 48 hours before symptom onset. If any of those close contacts are co-workers, the person who has developed symptoms may wish to (but is not obliged to) ask their employer to alert those co-workers.
At this stage, those close contacts should not self-isolate, but they:
· must avoid individuals who are at high-risk of contracting COVID-19, for example, because they have pre-existing medical conditions, such as respiratory issues
· must take extra care in practising social distancing and good hygiene and in watching out for symptoms
· will be better prepared if the person who has symptoms has a positive test result and if they (the contact) receive a notification from the NHS test and trace service explaining they need to self-isolate
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.
The NHS COVID-19 app
The NHS COVID-19 app will form one component of the NHS test and trace service. It will complement other forms of contact tracing, helping to speed up contact tracing and to reach people who cannot be reached through traditional forms of contact tracing, such as someone you do not know but you have sat next to on public transport.
For further information on the app can be found on the NHS COVID-19 App website.
