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New self-isolation rules from 16 August 2021

From Monday 16 August, employees who have been double vaccinated, or are aged 18 and under, will no longer be required to self-isolate and therefore be able to continue to go into their workplaces even if they have been in close contact with someone who has tested positive for COVID-19.

This poses a number of questions for employers, which will be considered below:

From Monday 16 August, do staff still have to tell us if they have been identified as close contacts of anyone who has tested positive for COVID-19?

That will depend on your policy, and whether they test positive or develop symptoms themselves.

If they test positive or are required to self-isolate because they’ve been in contact with someone who has, they will have a legal duty to self-isolate for at least 10 days unless they are exempt.

The exemption applies to individuals who have had their second COVID-19 vaccination at least two weeks before they came into close contact with the positive case.

If they have a legal duty to self-isolate i.e., they have not received both doses of the vaccination, staff must inform you of this unless they are working in the place where they are self-isolating – such as their home.

Does this also apply to people who are ‘pinged’ via the Test and Trace app?

Anyone who is ‘pinged’ by the NHS test and trace app is advised to self-isolate for 10 days, but they are not legally required to do so. As there is no legal requirement to isolate, these notifications will not fall under the new rules.

If an employee’s isolation period is due to end after Monday 16 August, will they need to continue to isolate beyond this date?

Anyone who is exempt under the new rules can stop self-isolating from midnight on Sunday 15 August. But, if they aren’t exempt, they have to continue to self-isolate for the full 10-day period.

If staff are exempt, are we able to require them to come into work if they have been notified as having been in close contact with a positive case?

Yes. If they fall within one of the exemptions, they do not legally have to self-isolate unless they test positive.

Although fully vaccinated people are much less likely to catch the virus than those who are partially vaccinated or unvaccinated, if they can work from home, you may wish to allow them to do so. This will reduce the risk that they may develop COVID-19 and spread it around your workplace.

Do we need to check the exemption status of staff?

Legally, the duty to self-isolate rests with the individual and therefore you are not required to carry out checks, however if you knowingly allow someone who ought to be self-isolating to attend work, you will be committing an offence.

One way of dealing with this will be to notify staff that by coming into work after receiving a notice to self-isolate from the NHS, they are confirming that they are legally exempt from the duty to self-isolate and have taken a PCR test and received a negative result.  You should also make it clear that if they come into work when they are not exempt, you will treat it as a serious disciplinary offence, which may result in their dismissal.

How can we check our employees’ COVID vaccination status?

There are various ways of doing this: You can rely on the official NHS COVID Pass Verifier app, the existing online COVID Pass service, checking an individual’s NHS COVID Pass letter or their NHS vaccination appointment card.

If you are only conducting a visual check of COVID Passes (either a hard-copy document or a pass held on a digital device) and do not retain any personal data from it, this won’t constitute ‘processing.’ The activity would therefore fall outside of the UK General Data Protection Regulation’s (GDPR) scope.

If you are conducting checks digitally (for example, by scanning the QR code displayed on the pass), this would constitute processing of personal data – even if you do not keep a record of it. The UK GDPR would therefore apply. Similarly, if you note the information on the employee’s HR file or some other record then you will be processing personal data and the UK GDPR would apply. Health data will constitute special category data (which gets additional protection under the GDPR), and there are therefore data protection issues to consider.

The ICO has published guidance on ‘Vaccination and Covid Status Checks’ which states that: ‘before you decide to check people’s COVID status, you should be clear about what you are trying to achieve, and how asking people for their COVID status helps to achieve this’ and ‘your reason for checking or recording people’s COVID status must be clear, necessary and transparent. If you cannot specify a use for this information and are recording it on a ‘just in case’ basis, or if you can achieve your goal without collecting this data, you are unlikely to be able to justify collecting it’.

In light of the changes coming into force on Monday 16 August, the reason for collecting this information is clear where you have staff on site: you will need to ensure that your staff are legally able to come into work after being in contact with someone who tests positive and the information is required to discharge your duties in respect of protecting the health and safety of other staff on site.

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