Self-isolation, testing and SSP: employers’ questions answered

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The UK may be on the cusp of a second coronavirus wave. Results from a population based study suggested the R number for England is now at 1.7, with infections doubling every eight days. Local lockdowns are in place in several areas and this week, the ‘rule of six’ came into force. Jo Moseley answers nine questions employers have asked about self-isolation, test and trace, and statutory sick pay.

  1. What are the rules on self-isolation?

The general rules are set out here. You must self-isolate immediately if:

  • you have any symptoms of coronavirus (a high temperature, a new continuous cough or a loss or change to your sense of smell or taste)
  • you’ve tested positive for coronavirus
  • you live with someone who has symptoms or has tested positive
  • someone in your “support bubble” has symptoms or has tested positive
  • you’re told to self-isolate by NHS Test and Trace
  • you arrive in the UK from a country with a high coronavirus risk.

If you have symptoms or have tested positive for coronavirus, you’ll usually need to self-isolate for at least 10 days.

  1. Do we have to pay staff who are self-isolating?

The following employees should receive statutory sick pay (SSP), provided they meet the other qualifying conditions:

  • anyone who is self-isolating because they have tested positive for Covid-19
  • anyone waiting for test results because they are suspected of having Covid
  • anyone with Covid symptoms
  • anyone who is living with someone with Covid symptoms
  • anyone who is in the same social support bubble as someone with symptoms or who has tested positive
  • anyone who has been told to self-isolate by NHS Test and Trace or by Public Health officials
  • anyone who is advised to stay at home for a period of 14 days being admitted to hospital for the purpose of undergoing a surgical or other hospital procedure.

The usual rules about “waiting days” don’t apply and SSP is payable from the first day of absence. If your employees can work from home whilst they are self-isolating, they should receive their normal pay.

Please note: anyone who is self-isolating because they have returned to the UK from abroad and have to quarantine is not entitled to SSP. More information about quarantine is available here.

  1. How do our staff get tested?

Anyone with coronavirus systems can (in theory) get a test via the government online test site. There are two options 1) to take the test at a “local” test site or 2) to take a home test kit. All tests should be done in the first five days of having symptoms – but home testing is only offered to people who have had symptoms for fewer than five days.

The demand for tests is extremely high and some people are offered tests in a different part of the country. Anyone that needs a test may, therefore, have to keep trying the site until a test near to where they live becomes available.

If any member your staff doesn’t have access to the internet at home, they can call 119 in England or Wales and 0300 303 2713 in Scotland.

  1. How long should an employee self-isolate if they develop symptoms?

Anyone who develops symptoms should be sent home and arrange to be tested. If they test positive, they must remain at home for at least 10 days – longer if their symptoms persist.

If the test is negative, your employee can return to work provided:

  • everyone they live with or who is in their support bubble who has symptoms tests negative
  • they are not told to self-isolate for 14 days by NHS Test and Trace; and
  • they feel well and have not had a fever for 48 hours.

However, the letter containing the test result advises individuals to talk to their employer before returning to work.

  1. Do your staff have to tell you if they’ve had a positive result?

Yes. They should follow your usual procedure to explain why they are not in work on the first day and keep you updated if they are likely to be absent for more than 14 days. They will not be able to visit their GP to obtain a fit note, but you can ask to see a copy of their results.

  1. Do staff have to self-isolate if they have been in “close contact” with someone suspected of having coronavirus?

No. Government guidance says that close contacts don’t have to self-isolate unless they develop symptoms themselves or they are asked to self-isolate by the NHS Test and Trace service or a public health professional (which will only happen if their contact has tested positive). However, they should:

  • avoid contact with people at high increased risk of severe illness from coronavirus, such as people with pre-existing medical conditions
  • take extra care in practising social distancing and good hygiene
  • self-isolate if they also show signs of coronavirus.

In a work context, a close contact is a person who has had face to face contact (within one metre) of the person who has tested positive for coronavirus including, being coughed on, having skin to skin contact or contact within one metre for one minute. It also includes people who have been within two metres for more than 15 minutes of the person testing positive or has travelled in a small vehicle, such as a car (even on a short journey) or a plane.

  1. Many of our staff have school aged children. What happens if their child is told to self-isolate?

If their child is told to self-isolate because they have symptoms their parents (and any other children or adults in the same house) will have to follow the stay at home guidance which says: “If you have symptoms of Covid-19 however mild, self-isolate for at least 10 days from when your symptoms started … and arrange to have a test.

“After 10 days, if you still have a temperature you should continue to self-isolate and seek medical advice. You do not need to self-isolate after 10 days if you only have a cough or loss of sense of smell or taste, as these symptoms can last for several weeks after the infection has gone.

“If you live with others, all other household members need to stay at home and not leave the house for 14 days. The 14-day period starts from the day when the first person in the household became ill or if they do not have symptoms, from the day their test was taken. If anyone else in the household starts displaying symptoms, they need to stay at home for at least 10 days from when their symptoms appear, regardless of what day they are on in their original 14-day isolation period.”

The guidance is not particularly clear about what happens if their child is sent home because someone in their “bubble” has tested positive. Our understanding (based upon anecdotal evidence) is that the child will be asked to take a test and, even if their test is negative, may still be advised to self-isolate for 14 days. However, their family (including any siblings who may be in the same school) do not have to self-isolate unless one of them develops symptoms, tests positive for coronavirus or they are told to self-isolate by NHS Test and Trace.

Employees have the right to take unpaid leave to deal with an emergency, such as collecting children from school at short notice because they are ill or have been told to self-isolate. However, they are only entitled to a reasonable amount of time off – usually a day or two to make arrangements for their care.  You’d usually be well within your rights to refuse to allow them to take 14 days off as emergency leave, but if they cannot return to work because they don’t have anyone else they can ask to look after their child, you may have to be flexible, not least because you need to maintain the relationship of trust and confidence between you.

Any employee who’s worked for you for at least a year may be able to take parental leave – which is also unpaid. Technically, they have to give you at least 21 days’ notice but many employers are relaxing those rules.

Otherwise, your employee may be able to take either paid or unpaid holiday.

  1. Can we stop staff leaving our premises during their lunch breaks to minimise the risk of infection?

We don’t recommend that you start dictating what your staff can do in their own time, other than reminding them that they should follow all national and local rules on social distancing and wear masks inside shops and takeaways and when travelling on public transport. If you have provided a “smoking space” for staff, you should emphasise the need for them to keep their distance from other smokers.

You have a duty to assess risks and put in place proportionate measures to control the risk of infection. The government has published 14 guides which span a range of different types of work and are designed to help employers get their workplaces Covid-safe. These do not say anything about restricting what staff do once they leave work.

  1. Should we tell other staff members if a colleague tests positive?

Anyone who has a test is encouraged to “consider asking their employer to alert co-workers with whom they have been in close contact” even before they have results. And, the stay at home guidance advises anyone who tests positive to “consider alerting people who you do not live with and have had close contact within the last 48 hours to let them know you have symptoms of Covid-19”.  Therefore, if a member of staff tells you they have tested positive, ask them if they have spoken to any of their colleagues with whom they’ve been in close contact and ask them for their names.

You may need to liaise with the NHS Test and Trace service to confirm which members of staff need to self-isolate.

There are some data issues that you should also bear in mind. Government guidance about test and trace says that: “Employers may need to keep staff informed about Covid-19 cases among their colleagues. However, employers should not name the individual. If a co-worker is at risk because of close contact with the positive case, then they will be notified to self-isolate by the NHS Test and Trace service.”

This aligns with guidance published by the Information Commissioner’s Office.

Therefore, if you do speak to other staff members, you must be careful what you say and limit this to what is necessary to safeguard the health and safety of others working with them. The basic rule of thumb is that you should only tell the smallest possible number of people the minimum amount of personal information about someone else that is necessary to keep them safe.

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Jo Moseley

About Jo Moseley

Jo Moseley is a senior associate solicitor at Irwin Mitchell

3 Responses to Self-isolation, testing and SSP: employers’ questions answered

  1. Avatar
    Nicola 7 Oct 2020 at 9:32 pm #

    Hi, I work in retail. A colleague recently tested positive for covid 19 and was told to self isolate for 14 days, the store immediately closed and was deep cleaned the staff working that day were sent gone without pay, members of staff working with the covid positive colleague were then told they all had to self isolate for 14 days by the company. Their options were to take those 14 days as holiday or unpaid leave.
    Because non of those people had symptoms they weren’t entitled to claim SSP nor were they contacted by NHS track and trace and non have had company sick pay (5 days per year at managers discretion).
    We’re minimum wage workers who have been on 80% pay and now have no support? Is this legal?
    If you could help I would be ever so grateful, we work for a huge profitable company.
    Regards

  2. Avatar
    richard baines 26 Oct 2020 at 7:38 pm #

    i was forced to self isolate by my employer as a coworker with whom i had close contact with tested positive for coronavirus. i was not told by track and trace and therefor am only eligible for SSP and cannot apply for the £500 government grant. They have stated that it will still have the 4 day waiting period taken from the first week and only the second week i would receive the full £90 SSP. I feel this is rather unfair and i have been forced to use all my outstanding holidays just to pay the bills.

  3. Avatar
    Stacey Leach 5 Nov 2020 at 8:24 am #

    Track and trace has told me to self isolate for eight days but I don’t know if I’ll be eligible for any sick pay

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