It is a legal requirement for individuals to self-isolate if they test positive or are told to do so by NHS Test and Trace, regardless of their vaccination status. However, the government intends to exempt those who are fully vaccinated (or under the age of 18) from the requirement to self-isolate if they are a contact of a positive case. The changes are due to come into effect from 16 August in England and 9 August in Scotland.
What are the current rules?
Currently, most individuals are obliged by law to self-isolate if they or someone they live with has COVID symptoms or tests positive, they have returned from a “red list” country, or they have been contacted by NHS Test and Trace. Failure to do so, or an employer insisting an employee comes to work in these circumstances, can result in fines starting at £1,000 for the first offence and increasing to £10,000 for the fourth and subsequent offences.
For individuals “pinged” by the NHS app, self-isolation is advisory only and not a legal requirement.
Recently, the government brought in exceptions for frontline healthcare staff and other critical workers to enable them to continue working, where it would have a “major detrimental impact on essential services” for them to self-isolate. The exception applies to those workers who are double vaccinated (and 14 days have passed since their second dose), and have been identified as close contacts. Included on the current list of exempt critical workers are railway signallers and air traffic controllers. Employers wishing to make use of the exemption must contact the relevant government department in their sector and applications will be agreed on a case-by-case basis. If eligible, this will be confirmed in a letter to the employer setting out the relevant measures that must be followed.
How are the rules changing?
From 9 August in Scotland and 16 August in England, all fully vaccinated people will be exempt from mandatory self-isolation. If someone is a close contact of a person with COVID, they will no longer be required automatically to isolate for 10 days. Instead, if the individual has been double vaccinated (for at least two weeks), or is under 18 years of age, and has no symptoms, their self-isolation can end. There is no legal requirement to take a PCR test, but individuals are encouraged to do so. If their test comes back positive, they will need to isolate.
What does this mean for employers?
In light of the change to the rules, it is arguable that employers will need to know which of their staff have been double vaccinated, in order to ensure they are complying with the law. The Information Commissioner’s Office recently published advice confirming that, to be processed lawfully, the collection of vaccination data must be necessary and relevant for a specific purpose. Each business will therefore need to determine what its aim is in collecting such data. Further, as employee medical information is “special category data”, collection of this data should be done with care, and in accordance with UK data privacy law.
There may also be increased discussions as to whether employers can enforce mandatory vaccination at the workplace, not only as a way to ensure the health and safety of staff, but also to maintain business continuity. Vaccination is a difficult and sensitive area with strong arguments on both sides, so all decisions and the rationale should be carefully documented and form part of a detailed risk assessment taking into account other measures to keep staff safe and maintain business continuity.