New Coronavirus Regulations - What Employers Need to Know

The Health Protection (Coronavirus Restrictions) (Self-Isolation) (England) Regulations 2020  came into force in England on 28 September 2020. They make certain failures in relation to self-isolation criminal offences.

The focus of initial reporting has been on the fact that individuals can be fined if they do not self-isolate following a positive test result for Covid-19, or if they are instructed by NHS Test and Trace (but not via the NHS Covid-19 smartphone app) to self-isolate because they have had close contact with someone who has had a positive test result. Also, if a person tests positive for Covid-19, it will be an offence to knowingly provide false information about their close contacts to NHS Test and Trace. Failure to comply with these requirements may result in a fine of up to £10,000.

Employers should also note, however, that (under regulation 7) it will be an offence for them to knowingly permit a worker, including an agency worker, who

  • has tested positive for Covid-19;
  • has been notified by that they have come into close contact with a person has tested positive for Covid-19; or
  • is required to self-isolate upon entry to the UK

to work, other than at home. Any employer who fails to do so will face a fine, starting at £1,000.

There is also an obligation (under regulation 8) on workers to tell their employer that they are self-isolating in such circumstances.

Self-isolating agency workers are required (under regulation 9) to inform either their agency, the principal (i.e. the party with who they are placed to provide services) or, if they are employed, their employer of the requirement on them to self-isolate under the new regulations. The regulations require whoever has received such a notification to pass the information on to the other parties.

Employers in England should remain mindful of the wider public health guidance that applies in England in respect of self-isolation from time to time; and, notwithstanding that (at least for the time being) there is no equivalent of the new regulations in Wales, employers in Wales should be mindful of public health guidance that applies in Wales.

It is an employer's duty to protect the health, safety and welfare of their employees and other people who might be affected by their business; and employers must do whatever is reasonably practicable to achieve this. If an employer knowingly allows any individual to attend work during a period when they should be self-isolating in accordance with public health guidance it may be in breach of that duty, even if it is not a criminal offence. Suspension may still be an option, but employers should consider whether they have a right to suspend in these circumstances. In the absence of an express contractual right to suspend, legal advice should be sought.