July 19 was meant to mark the end of pandemic lockdown restrictions in England, as progress continued in vaccinating people against Covid-19. But just as the country relaxed most restrictions, it was still dealing with a third wave of coronavirus infections as the highly contagious delta variant spread across the UK. A record number of people who had come into contact with an infected person were being asked to self-isolate, most of them having been “pinged” by the National Health Service’s contact-tracing app. The “pingdemic,” as it’s been dubbed, has produced enormous disruptions for businesses and critical services that threaten to undermine efforts to revive an economy still recovering from its deepest recession in 300 years.
More than 600,000 self-isolation alerts were sent in England and Wales in one week in July. This led to unprecedented staff shortage complaints from businesses.
In July, the trade body UK Hospitality estimated that up to 20% of the hospitality sector’s workforce could be in self-isolation. In the same month, it was also estimated that over 74,000 employees in the consumer and retail sector were self-isolating, with a further almost 19 thousand workers off with confirmed Covid-19 infections.
In response, the UK Government initially removed the need for self-isolation for double vaccinated workers in frontline health and social care. The rules around self-isolation have been further relaxed since 16 August.
Current rules around self-isolation
Double vaccinated adults who received their final dose at least 14 days before contact with a positive case no longer need to self-isolate, provided they have taken a PCR test and received a negative result. The same is true for those who can prove they can’t be vaccinated for medical reasons.
Where does that leave employers and their workforces?
With 75% of the UK population now fully vaccinated, businesses should be able to manage short-term absence and work from home (WFH) arrangements while “pinged” staff get tested. But vaccine hesitancy in younger workers (ages 18-24 in particular) could leave some sectors with ongoing staff shortages, particularly in the hospitality, retail and food manufacturing sectors. Whereas the rule changes of 16 August will undoubtedly help, even now it is too early to tell exactly what impact they will have on staffing levels.
Can an employer demand proof of the requirement to self-isolate?
The short answer is yes. The usual sickness absence process applies to staff who need to self-isolate and cannot work from home. The employer should check their company’s absence policy to see what it says about proving sickness absence. Specifically:
- If someone is off work for seven days, they can get an isolation note from either their NHS app (in England) or The NHS website (Scotland, England, and Wales)
- If someone is off work for seven days or less, they can ‘self-certify’ their absence
- Employers are expected to be flexible if asking for isolation notes – e.g., where a worker is not well enough to provide it immediately
Current Scottish Government guidance for employers
In Scotland, the government has provided guidance called ‘Test and Protect,’ which outlines their approach to the test, trace, isolate, support strategy. There is the ongoing expectation that employers will continue to support WFH, handwashing, and other preventative procedures and require maintaining two metres between people in the workplace and focus on duty of care to employees.
The government also recommends that companies put business continuity planning in place to manage staff absence.
In cases where Test and Protect contacts the employer looking for details of staff affected by an outbreak, the employer can provide this notwithstanding the Data Protection Act 2018. It allows for the processing of sensitive data for “reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health.”
In July, the Scottish Government, public, private, and third sector partners, and the Scottish Trades Union Congress (STUC) issued a joint statement outlining fair work expectations to support the transition out of lockdown. The statement, which is still valid, states:
- Workers should have effective voice channels, including through their trade unions, for maintaining a constructive dialogue with their employers on workplace matters relating to COVID-19
- No worker should be financially penalised for following medical advice
- Any absence relating to COVID-19 should not affect future sick pay entitlement or other entitlements like a holiday or accrued time
- Any absence related to COVID-19 should not result in formal attendance related warnings or be accumulated with non-COVID related absences in future absence management figures
Complying with the statement is likely to require flexibility in standard absence/attendance management arrangements. The statement applies to all workers who are sick or self-isolating under the Test and Protect strategy.
What support is available to employees?
Employees who are self-isolating are entitled to claim Statutory Sick Pay (SSP). If the employer provides contractual sick pay, whether the employee is entitled to contractual sick pay will depend on whether they have symptoms and the terms of the contractual sick pay.
It is likely that contractual sick pay will only be payable for employees with symptoms (i.e., where they are actually sick – even if only mildly – instead of just self-isolating). Employees on low incomes are still entitled to a £500 payment if asked to self-isolate by contact tracers.
Currently, only regulated care homes in England will legally require workers to be vaccinated from 11 November 2021. Acas advises employers to encourage and support their staff without requiring vaccination, for example, by offering paid time off to attend vaccination appointments.
The Acas guidance previously acknowledged that employers might need to make vaccination mandatory where it is necessary for an employee to do their job, such as traveling overseas to countries that require visitors to be vaccinated. However, this wording was removed by the 25 February 2021 update to the Acas guidance.
In April 2021, the Equality and Human Rights Commission (EHRC) warned that blanket mandatory vaccination policies, applied inflexibly, are “likely to be unlawful” due to vaccination not being suitable for everyone.
On 12 July 2021, Public Health England published COVID-19 vaccination: a guide for employers. The guide urges employers to encourage their staff to get vaccinated and suggests practical steps that employers can take to encourage vaccination uptake among staff, including:
- sharing information on the facts about vaccination
- offering time off to attend vaccination appointments
- showing support for vaccination from senior leadership by appointing departmental champions and encouraging senior staff to share their vaccination experiences
Key points to consider before imposing a mandatory vaccination requirement or treating employees or job applicants differently because of their vaccination status:
- Vaccination is not suitable for everyone
- Requiring an employee to be vaccinated without their consent as a condition to providing work could amount to a repudiatory breach of contract, entitling them to claim constructive dismissal
- A mandatory vaccination requirement could indirectly discriminate against employees and job applicants with certain protected characteristics and breach Articles 8 and 9 of the ECHR
- Imposing a mandatory vaccination policy could result in negative publicity for the employer – this could have a detrimental impact on profitability and recruitment/retention
- Employers may find it difficult to justify a mandatory vaccination requirement on health and safety grounds for the following reasons:
- although vaccination reduces the chance of the vaccinated individual contracting COVID-19, the extent to which vaccination reduces transmission is still under review – PHE states that the evidence on this is “less clear”
- it is unknown how long any protection offered by vaccination will last (but readers will note the recent announcement that booster vaccines are to be offered to over-50s this winter)
- There is a minimal risk that vaccination could have long-term, adverse side effects for some individuals – this could result in personal injury proceedings
- Consultation with workplace and health and safety representatives and with trade unions is likely to be required
- Careful consideration of the data protection implications will also be needed in terms of justifying the processing of vaccination status information
Get in touch
Should you have any questions on anything covered in this article or employment matters generally, please get in touch with Dawn Robertson at email@example.com or on + 1 44 (0)131 220 9579.
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