New self–isolation obligations for employers in force today

Published 28 septiembre 2020

Important new coronavirus laws have come into force in England today which require employers to prevent self-isolating workers from attending their workplace (except where they work from home). Failure to comply is a criminal offence punishable by a fine of £1,000 for a first offence, rising to £10,000 for repeated infringements.

The Health Protection (Coronavirus, Restrictions) (Self-Isolation)(England) Regulations 2020 (“the Regulations”) impose strict self-isolation obligations on individuals who test positive for coronavirus, or who have been identified as a close contact of someone who has (other than by a notification via the NHS Covid app). The duration of the self-isolation period will depend upon the individual circumstances but could be up to 14 days.

If the self-isolating person is employed and cannot from work, they must promptly notify their employer (and/or their agency, if they are an agency worker) of the fact that are required to self-isolate and for how long (a failure to do so is a criminal offence). Employers and agencies which receive such a notification must not allow the self-isolating worker to attend any place of work other than the place where are self-isolating. The agency must also notify the hirer of the worker’s obligation to self-isolate.

The Regulations do not specify the means by which an individual may be notified of the self-isolation requirement and such a notification could come by, for example, a text message (in the case of a test result) or a telephone call (from a contact tracer). The only form of notification which is specifically excluded is one which is received by the NHS Covid app. Further, the Regulations do not specify the means by which a self-isolating worker must notify their employer. The lack of any prescribed formality presents difficulties for employers who will largely have to accept the word of their workers that they are required to self-isolate. In effect, self-isolation will largely be by way of self-certification in the same way as a short sickness absence may be. Clearly, if an employer has reasonable grounds to suspect that the worker has made a false declaration, that would be a disciplinary matter but employers are going to have to place considerable trust in workers who declare that they are self-isolating.

Employers should also expect some disruption as a result of these requirements. For example, if a worker receives a call from a contact tracer while they are at work, their self-isolation period will begin immediately and they will have to ‘down tools’ and return home until their self-isolation ends.