The new reality for UK employers - Part 2: The duty to self-isolate - what employers need to know
9 min read
For further information, please visit the White & Case Coronavirus Resource Center.
On 28 September 2020, new regulations introduced an obligation on people to self-isolate where they have been advised to do so through the NHS track and trace system or where they or someone they live with has tested positive for COVID-19. The regulations now make it a criminal offence for an individual to breach his or her self-isolation. The new rules will play an important part in how employers manage employees who are required to self-isolate, including where they are returning to the UK from a holiday destination that is no longer on the UK Government's 'travel corridor' exemption list.
What are the new rules on self-isolation?
Key points
The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 (the "Regulations") came into force on 28 September 2020. The key takeaways from the new rules are as follows:
- Workers must notify their employer if they are required to self-isolate when they are due to work anywhere other than the place they are required to self-isolate. For most people, the place where they are required to self-isolate will be their home. However, where a worker is expected to work away from home (e.g., from an office), they must inform their employer of their need to self-isolate and the start and end dates of that period
- The self-isolation period starts from the moment that an official notification is received by the person who is required to self-isolate and the Regulations set out mandatory periods for self-isolation based on whether an individual has tested positive, has been notified that another member of their household has tested positive or has been recorded as a close contact of someone outside their household who has tested positive
- Employers who are aware of the requirement to self-isolate must not knowingly allow the relevant worker to attend any place other than where the worker is required to self-isolate, for any purpose related to the worker's employment. This means that an employer must not allow anyone who is expected to work from the office and who has confirmed that they are self-isolating to come into the office.
When do the new rules apply?
These requirements apply to self-isolation either after travel or after being told by the NHS Track and Trace or another authorised person to self-isolate, or where someone has, or lives with someone who has, tested positive for COVID-19. They also apply equally to partners and those employed by third party providers and agencies, as if they were employees.
Since the UK Government first announced the introduction of 'travel corridors' or 'air bridges' on 10 July 2020, the original list of 'low risk' countries from which travellers could arrive into England, Wales and Northern Ireland without undergoing mandatory quarantine has changed on a regular basis. Employees travelling to a country that is not on the UK Government's 'travel corridor' exemption list will have to self-isolate for 14 days when they return to the UK, and employers and employees will have to comply with the new self-isolation requirements in the Regulations. The 'travel corridor' exemption list is under constant review and can change at short notice, giving some holidaymakers just hours to try to get an immediate flight home or otherwise face a 14 day self-isolation period following their return to the UK. Given that any breach of the UK travel quarantine rules will be a criminal offence, employers will in particular be faced with growing challenges on how to manage such employees on their return from holiday.
What are the penalties for failing to comply?
The Regulations make it a criminal offence for an individual to breach his or her self-isolation and fines start at £1,000, rising to £10,000 for repeat offenders and more serious breaches. For employers, the Regulations make it an offence to knowingly permit a worker (including an agency worker) to attend any place other than where the individual is self-isolating. So, if an employer knows a worker is required to self-isolate, it is now responsible for preventing that worker from attending their place of work, unless that place is the place where they are self-isolating, which will generally be the case where the employee can work effectively from home. Any employer who fails to do so will face a fine of at least £1,000.
Managing employees who are required to self-isolate
Below are some of the key questions facing employers when considering how to manage an employee who is required to self-isolate, either after travel or after being told by the NHS Track and Trace or another authorised person to self-isolate, or where someone has, or lives with someone who has, tested positive for COVID-19 (a "quarantined employee").
Q: What pay is a quarantined employee entitled to?
A: If it is possible for the quarantined employee to work from home during their self-isolation period, then they should do so and continue to be paid in the normal way. If the quarantined employee's role cannot be performed effectively from home, then an employer could consider moving the quarantined employee temporarily to another role during the self-isolation period that would allow remote working. However, depending on the quarantined employee's role, skillset and level of experience and whether or not they would be willing to consent to this change, this may not always be possible.
Where it is necessary for an employee to travel for business related reasons to any country outside of the UK 'travel corridor' exemption list, it would be reasonable for an employer to continue to pay the employee his or her full pay in the normal way during any related self-isolation period.
Q: Can a quarantined employee take extra holiday?
A: Yes. Whilst the Government's guidance states that an employer should consider whether the requirement to self-isolate would prevent an employee from resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday, an employer may request that a quarantined employee takes extra days' holiday to cover any self-isolation period. This depends on the employee having sufficient annual leave entitlement remaining, and the employer giving the quarantined employee a minimum amount of notice (usually, twice the length of the proposed period of holiday).
While this approach will ensure that the quarantined employee continues to receive full pay until they are able to return to work, employees may be reluctant to take additional holiday if this will leave them short of annual leave to take during the remainder of the holiday year. A compromise could be for the quarantined employee to take part of the self-isolation period as holiday and the remainder as 'special' paid or unpaid leave. Whatever decision is taken, an employer will need to make sure that it adopts from the outset a clear and consistent approach on requests to use annual leave to cover the mandatory self-isolation period, and it is advisable that this is recorded in writing.
Q: Is it possible to furlough a quarantined employee?
A: Yes, but only if the quarantined employee has been previously furloughed under the Coronavirus Job Retention Scheme ("CRJS") for at least 3 weeks at any time prior to 1 July 2020.
The employee's absence from work is a direct consequence of the COVID-19 pandemic, and statutory sick pay is not otherwise available during quarantine, meaning furlough in these circumstances is arguably a legitimate use of the CRJS. There is now no minimum furlough period so employers can furlough a quarantined employee for the 14 day self-isolation period, and bring them back to work immediately after this, if they remain well. There has been some debate over whether using furlough in these circumstances is permitted by the CRJS. Our view is yes; this falls within the current scope of the rules and any agreed arrangements will need to be documented in a new furlough agreement for the quarantined employee to sign.
Q: Can an employer offer unpaid leave to a quarantined employee?
A: Yes. If a quarantined employee is unable to work from home and cannot be furloughed or take annual leave, the remaining option would be for their employer to offer unpaid leave. That said, it may seem unreasonable to offer unpaid leave to those employees who were already holidaying abroad when new quarantine rules came into force for that particular country, or if an employee has been forced to travel due to a bereavement or family emergency (although such circumstances are likely to be covered under an employer's separate bereavement or compassionate leave policy).
Employers may also wish to consider reserving offering unpaid leave for situations where an employee is repeat offending (for example, continually making plans to travel to destinations outside of the UK 'travel corridor' exemption list, knowing that they would be paid for any related self-isolation period).
Q: Can an employer refuse or cancel an employee's leave request?
A: Yes. An employer can refuse a leave request or cancel leave, but they must give as much notice as the amount of leave requested and should have legitimate business reasons for doing so.
Once an employer is made aware that an employee plans to travel to a country that will require them to self-isolate on return to the UK, it may be tempting to refuse the employee's leave request or cancel any authorised annual leave previously granted to that employee. An employer may also want to instruct an employee not to travel to a particular country if that would require the employee to self-isolate on return.
Whilst this option will clearly minimise any disruption to the business that may arise as a result of the quarantine travel rules, from an employee relations perspective, employers may wish to focus on agreeing a mutually acceptable agreement to cover the post travel self-isolation period, particularly if the employee is unable to recoup any holiday costs already incurred if their leave is cancelled or if they are instructed not to travel by their employer.
Q: Any other practical considerations?
A: Yes. We have set out below a few additional considerations for employers:
- It is advisable for employers to update workers on the new rules regarding the duty to self-isolate and ensure that everyone knows and understands the new reporting obligations under the Regulations.
- Whilst not required by the Regulations, employers may wish to consider asking workers who can work remotely to notify the employer where they are required to self-isolate. This may be particularly relevant where a workplace remains open and employees who otherwise can work remotely may voluntarily attend the workplace.
- For those employees travelling abroad, all post-travel arrangements should be confirmed with the employer before any travel abroad is undertaken. Employers may wish to consider implementing a general policy that would apply to all travel.
- At the end of any self-isolation period and before any return to work, it would be wise for an employer to request that all employees confirm that they do not have any COVID-19 symptoms and are not required to self-isolate further because someone they live with has developed symptoms or they have been notified by the NHS Test and Trace to self-isolate further.
White & Case means the international legal practice comprising White & Case LLP, a New York State registered limited liability partnership, White & Case LLP, a limited liability partnership incorporated under English law and all other affiliated partnerships, companies and entities.
This article is prepared for the general information of interested persons. It is not, and does not attempt to be, comprehensive in nature. Due to the general nature of its content, it should not be regarded as legal advice.
© 2020 White & Case LLP
