Self-isolation removed for double-jabbed close contacts: what does this mean for employers?

With the progress of the vaccination roll-out, the requirements for self-isolation in England for close contacts of a positive Covid-19 case are changing on 16 August 2021. Similar changes are already in place in Wales (from 7 August) and Scotland (from 9 August). While we wait for any updated guidance, the government has published a press release on the changes.

What are the changes?

From Monday 16 August, a person who:

•  is double jabbed, meaning they received the final dose of an MHRA-approved vaccine in the UK vaccination programme at least 14 days prior to contact with a positive case (our emphasis);
•  is below the age of 18 years 6 months;
• has taken part in or is currently part of an approved Covid-19 vaccine trial; or
• is not able to get vaccinated for medical reasons

will no longer be legally required to self-isolate if they are identified by NHS Test and Trace as a "close contact" of a positive Covid-19 case. Instead, these individuals "will be provided with advice on testing and given guidance on preventing the spread of Covid-19". They will also be advised to take a PCR test "as soon as possible" to check if they have the virus and for variants of concern (subject to some exceptions where a positive PCR test has already been recorded in the last 90 days). People can order a PCR home test online, or by calling 119, or going to a test site. The government press release confirms that individuals "will not be required to self-isolate while they wait for the results of the PCR test".

Who is a close contact?

Government guidance confirms that a contact is a person who has been close to someone who has tested positive for Covid-19. You can be a contact any time from two days before the person who tested positive developed their symptoms (or if they did not have any symptoms, from two days before the date their positive test was taken) and up to ten days after. A risk assessment may be undertaken to determine who is a contact. The statutory regulations state that a close contact includes anyone who:

• has face to face contact with someone at a distance of less than 1 metre;
• spends more than 15 minutes within 2 metres of an individual; or
• travels in a car or other small vehicle with an individual or in close proximity to an individual on an aeroplane.

An individual who is a contact will be notified by the NHS Test and Trace service via text message, email or phone.

What does this mean for employers?

The impact of self-isolation on individuals and businesses has been well-publicised; many individuals have had to stay at home on reduced pay or have used their annual leave to cover a self-isolation period, while businesses have struggled to manage workforce requirements. With 75% of adults having received both doses of the vaccine, the changes to the rules mean that the majority of adults will no longer need to self-isolate if they are "close contacts".

Employers will need to:

• Consider the impact of these changes in line with their health and safety risk assessment and statutory health and safety obligations to provide a safe place of work. It will be important to consider what, if any, additional measures may be appropriate in consultation with employees and their representatives.
• Listen to employees' concerns about the relaxation of the self-isolation rules sensitively and carefully and consider what additional steps might be appropriate. Despite medical evidence pointing to the lower rates of infection and transmission for the fully vaccinated, employees who are clinically extremely vulnerable may have particular concerns, for example, if they have not been vaccinated for medical reasons.
• Ensure employees understand the new rules. Remind them that if they test positive or show symptoms of Covid-19 you should be notified immediately and they must self-isolate in line with government guidance. Employers should also remind employees who may have been vaccinated outside of the UK that the new exemption is not currently available to them. Employees are liable for a fine if they are notified by NHS Test and Trace to self-isolate and it remains unlawful for employers to require an employee who has received such a notification to return to the workplace in breach of the self-isolation rules.
• Employers should encourage employees who are contacted by NHS Test and Trace as a close contact to take a PCR test where they are instructed to do so. Government guidance on self-isolation for individuals has been updated and also sets out other ways individuals can help protect others including "limiting close contact with people outside [their] household, wearing a face covering in enclosed spaces and where [they] are unable to maintain social distancing, limiting contact with anyone who is clinically extremely vulnerable and taking part in regular LFD testing".
• In some instances employers may consider it appropriate to ask employees to inform them if they are identified as a close contact by NHS Test and Trace (even though they have not been instructed to self-isolate); whether or not this is so appropriate will need to be considered carefully in light of the reason for doing so, given the particular business operations and the legal risks in imposing such a requirement. At present there is no specific government guidance for employers in this respect.

With these new rules, employers are understandably increasingly keen to understand the "risk" profile of their organisation, including who is fully vaccinated, with a view to putting in place their own internal measures - for example, perhaps only permitting fully vaccinated employees to return to an office environment. Any such measures raise a number of legal and practical questions, as well as potentially creating a "two tier" workforce bringing with it discrimination and employee relations issues. We will be looking at this and other difficult questions which are now rising up the agenda in our webinar on Monday 16 August at 9.30am – please do join us by accepting the invitation here.