Test and Trace – what does it mean for employers?

The Government has announced its new measures for the NHS Test and Trace service in England (sometimes informally referred to as Track and Trace), which aims to help the country keep coronavirus under control while lockdown restrictions are gradually lifted.

The idea of Test and Trace is that any person who has coronavirus symptoms can be tested. If the test is positive, specialist contact tracers will then get in touch with that person and ask them for information about anyone they have recently been in close contact with. The contact tracers will then alert those recent contacts and inform them that they now have to self-isolate in order to try to stop the spread of the virus.

Test and Trace is not the same as the planned contact tracing app, which is currently being trialled in the Isle of Wight. The intention is that an app could be used in the rest of the country in future, possibly in early June, but so far the Government have not put a specific launch date on this.

What do employers need to know?

The Health Secretary Matt Hancock has said in interviews that the support of employers will be crucial to the success of the new service. This is because the Government says it needs employers to encourage workers to adhere to the requirement to self-isolate. The idea is that if the Test and Trace system works, then it will be less disruptive to businesses than the alternative of an extended or re-started lockdown.

Employers have a duty to take reasonable care of the health and safety of their workers as well as other people who may be affected by their business, such as customers, suppliers and visitors. A risk assessment should be undertaken for each workplace (including an assessment of the risk of coronavirus), and the current guidance is still that staff should be working from home where it is possible for them to do so (the introduction of Test and Trace has not changed that). Where working from home is not possible, measures should be put in place to try to minimise the risk. The Health and Safety Executive’s guide to carrying out a risk assessment is available here, and the Government’s sector-specific guidance is available here. Workers should be consulted and involved in developing the risk assessment.

How it works

If one of your employees develops coronavirus symptoms, then they will need to self-isolate for 7 days (as has been the case previously). And it is still the case that all members of their household must also self-isolate for 14 days.

Anyone with symptoms can now apply to the NHS to be tested (details available here). However, there is high demand, and understandably those who are key workers are being prioritised.

If the test result is positive, those who have recently been in close contact with the infected person will be contacted by Test and Trace and asked to self-isolate for 14 days. This significantly expands the category of people who have to self-isolate. The Test and Trace service will provide a notification for those who are told to self-isolate which can be given to employers.

If the test result is negative then clearly the individual (and the members of their household) no longer need to self-isolate.

What happens about pay during self-isolation due to Test and Trace?

New rules have been put in place which specifically state that employees who are required to self-isolate due to Test and Trace will be entitled to Statutory Sick Pay (SSP). This is payable from day one, as there are no waiting days where the absence is due to the coronavirus pandemic.

For coronavirus-related absences, eligible employers (in general, this is those with under 250 employees on their payroll) can claim reimbursement of 14 days’ SSP paid to employees (details of this can be found here). This has now been extended to cover absences due to self-isolation in accordance with Test and Trace.

Unfortunately the fact that the SSP rate is low (currently £95.85 per week) is likely to discourage some people from following the rules and self-isolating when instructed to do so. There are also some zero hours or casual staff who will not necessarily be eligible for SSP and would therefore potentially be paid nothing during self-isolation. The system does seem to rely on people being honest about the fact they have been told to self-isolate. Matt Hancock has described it as a “civic duty”, and this is one of the areas where the Government has said that employers’ support is crucial, to encourage people to adhere to the self-isolation period.

Many employers do of course offer sick pay over and above SSP, usually subject to certain restrictions such as length of service and a maximum amount per year. The new rules about self-isolation and SSP do not strictly speaking affect employer sick pay, but it is highly likely that most employers would treat the time as sick leave in their usual way, so as to deter potentially infectious people from attending the workplace.

The Government have said that employees can choose to take annual leave rather than being on SSP, but that may not necessarily be an attractive option for some people.

Some potential problems

One of the difficulties with the scheme is that testing is currently limited to people who actually have symptoms. (The NHS website on testing specifically says “Please help the NHS by only asking for tests for people who have coronavirus symptoms now.”) So if a member of staff is told by a contact tracer that they need to self-isolate for 14 days, that person cannot currently take a test in order to try to get the all clear to return to work sooner.

There is also a danger that people might be ‘contact traced’ several times in succession, meaning repeated incidents of 14 day self-isolation, which is likely to be very frustrating for employers and employees.

Some people have been concerned about the risk of abuse of the scheme – for example, someone might maliciously name someone as having been a close contact of theirs in order to inconvenience them by forcing them to self-isolate. There has also been some suggestion that people might abuse the scheme to get more time off (presumably this is more likely for those whose employers pay more than SSP). As the scheme develops it may be that anti-avoidance measures are introduced if these issues do become a significant problem.

Finally, there is of course a risk that a workplace could have a number of people who have to self-isolate at the same time, due to having come into contact with each other at work. Hopefully the risk of this can be minimised by measures such as appropriate social distancing, but nevertheless this will be a significant concern for employers whose staff cannot carry out their work from home.

Conclusion

The new service has only just launched and it is to be expected that there will be some teething problems while we all get used to how it will work in practice. It will also potentially change again once the app is released. For now, it is important that employers are aware of how the Test and Trace scheme works and take it into account when they are carrying out their workforce planning and risk assessments.