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Desley Sherwin
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Test and Trace - how it might impact employers and employees

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At 9am on 28 May 2020, the Government launched the NHS Test and Trace Service in England: those who have been in close contact with someone who tests positive for Covid-19 “must” isolate for 14 days, even if they have no symptoms, to avoid unknowingly spreading the virus. The stated aim is to help identify, contain and control coronavirus, reduce the spread of the virus and save lives.

What impact might this have on employment?

Background: The scheme

If someone develops Covid-19 symptoms (anyone with a new, continuous cough, a high temperature or a change in their sense of smell or taste), they should self-isolate for at least seven days. They can order a test online at nhs.uk/coronavirus or by calling 119.

If the test result is positive, they will be contacted by NHS Test and Trace and will need to share information about their recent interactions – there is commentary that suggests that ‘recent’ means in the last 7-9 days.

People identified as having been in close contact with someone who has had a positive test (referred to as ‘associates’) must stay at home for 14 days, even if they do not have symptomsthis means that some of the workforce necessarily are not going to be available for work at the very time when businesses start to reopen. Members of the household of associates will not also have to stay at home, unless the associate becomes symptomatic, at which point they must also self-isolate for 14 days.

Statutory Sick Pay

SSP will be available for eligible individuals diagnosed with Covid-19 or those associates unable to work because they are self-isolating in line with Government advice. Of course, if work can be undertaken from home during the period of isolation this must be the first option.

To be eligible you have to undertake work and earn at least an average of the ‘lower earnings limit’ which is currently £120 per week.

Will SSP be payable from day one? Yes.

Will employers of fewer than 250 employees be able to reclaim SSP? Yes.

Employees can 'self-certify' for the first seven days off work. This means following their workplace process but not having to get a note from a doctor or NHS 111.

Those self-isolating due to coronavirus for more than seven days (including ‘associates’) can get an online self-isolation note from the NHS website or NHS mobile phone app.

Self-employed/lower paid

Will the self-employed or those who are usually ineligible for SSP be able to access any financial help if they are required to self-isolate under this scheme? No – I expect that they will have to see if they qualify for Universal Credit or Employment Support Allowance.

Interaction with company sick pay

It is highly unlikely that someone who is self-isolating as a result of being traced under the scheme (an ‘associate’) will be eligible for company sick pay whilst they are asymptomatic. Should they become symptomatic and test positive for Covid-19, they may then be eligible for company sick pay depending on their individual contract terms.

Interaction with furlough leave/pay

What about an employee who is on furlough leave – if they are caught by the scheme, do they continue to receive furlough pay or do they go onto SSP? I presume that the situation will be that they will continue to receive furlough pay as long as they are on furlough leave.  If they are given notice by their employer to return from furlough leave but they cannot because they are symptomatic or self-isolating under this scheme, then they will be moved onto SSP.

It may also be the case that businesses will have to recall earlier than intended some staff currently on furlough to cover for working staff who have to go into isolation either because they have become ill with Covid-19 or they have been traced as an ‘associate’.

Consider the following:

If Bloggs Limited has fewer than 250 employees, with worker A at work earning his usual salary, and worker B on furlough (earning 80% of salary), but A is traced and has to self-isolate, then A will go onto SSP, whilst B will be recalled from furlough.

Instead of claiming back B’s 80% furlough pay from the Government, Bloggs Limited will only reclaim A’s SSP at £95.85 per week (usually this will be less than the furlough pay).

Interaction with redundancy plans

At the time of writing, some 8.4 million employees are currently being paid by the Government under the Coronavirus Job Retention Scheme.  Sadly, it is inevitable that some businesses will have to consider making some roles redundant as the furlough scheme winds down. Indeed, some big names – e.g. Rolls Royce, EasyJet, etc. – have already announced plans for large-scale redundancies. Just this morning, Renault has announced global redundancies.

We simply don’t know how many people are going to be affected by this Test and Trace Scheme. But if enough are caught by it – especially if the anticipated ‘second wave’ of infection does follow – I can foresee some employees being told during their redundancy consultations that in fact they are no longer at risk of redundancy and are needed at work, especially for smaller employers.

On the one hand, that continuation of employment will be a relief. On the other, they will have the uncertainty of not knowing how long this temporary reprieve will last, and they will expect to be at the top of the list in the next round of redundancies – creating a lack of motivation to work and reduced loyalty to that employer.

What can employers do?

Where possible, I think employers will be sensible to allow their employees to continue to work from home. Where that is not possible, not only will employers need to comply with their health and safety duties, they should also recognise that it is in their interests to ensure that they have undertaken thorough risk assessments, and put in place the measures that are identified as necessary to reduce as far as possible the incidence of risk: not only the risk of their staff catching Covid-19, but also the risk of them simply being in contact with someone who might unknowingly be symptomatic.

Reduce that risk and you reduce the risk of your workforce having to go into self-isolation for 14 days. I have seen a suggestion that if care workers are traced as ‘associates’, Public Health England have a plan in place in case of need to replace whole teams of careers who might have to self-isolate!

Standard measures for employers to take will include: Encouraging social distancing at work, avoidance of travel on public transport, provision of washing facilities/hand sanitiser, staggering start and end times, provision of PPE (including masks and gloves where appropriate).

Further detail will be provided as it becomes known.