The Covid-19 pandemic is continuing to generate rule changes that affect the way that employers manage their staff and, in some instances, require careful thought. Three current issues are worth particular attention.
Vaccinated employees and self-isolation
With effect from 16 August, employees who are double vaccinated or who are under 18 will no longer be required to self-isolate if they are contacted by NHS Test and Trace to say that they have been in contact with someone who has tested positive for Covid-19.
There is currently no positive obligation on you, as an employer, to check that your employee is exempt from self-isolation. The legal duty lies with the individual. However, you already commit a criminal offence by knowingly permitting someone to attend work when they ought to be self-isolating and that will continue to be the case after 16 August.
There are therefore some questions about how you will avoid committing the offence. The under 18s should be easy to identify as you are likely to have details of their dates of birth. As regards other members of staff, the problem may be short lived if the NHS Test and Trace App is updated to reliably identify those who are double vaccinated, but there is no guarantee that this will happen, or happen immediately the rules change. You will need to consider whether to simply issue a notice to staff explaining the new rules and confirming that they must only attend work if they are eligible for exemption or go further and ask for evidence from staff members that they are fully vaccinated.
This option raises some data protection and privacy issues and the Government makes it clear in its guidance to employers that they must adhere to data protection legislation. If you are tempted to solve the problem by using the NHS Verifier App, you should take note of what the ICO guidance on vaccination status checks says on this topic. The guidance makes clear that in certain circumstances checking the Verifier App will involve the processing of special category data and you will need to make sure that you are doing so in accordance with data protection rules.
Redundancies at the end of the furlough scheme – a reminder of the rules
Government figures suggest that many employers are envisaging making redundancies once the furlough scheme is phased out at the end of September 2021. Now is a good time to plan ahead if you think this may be a necessary step, particularly if you are likely to be making 20 or more redundancies in one place (or ‘establishment’) within a 90 day period. This is the threshold for mandatory reporting of redundancies to the Government on a Form HR1 and for collective consultation with employees according to prescriptive statutory rules.
Failing to report on an HR1 is a criminal offence. Failing to follow the collective consultation rules can result in a penalty worth three months’ pay for each affected employee. Collective consultation involves giving specified information and consulting with union or elected employee representatives over specified minimum periods (30 days for 20-99 redundancies and 45 for 100 or more redundancies). The duty can arise even where you intend staff levels to stay the same, but for example, you are cutting costs by renegotiating contracts.
You can also be caught out by redundancies that take effect, for example, over several weeks, but reach the 20 employee threshold within a 90 day period. Early advice and planning can avoid costly mistakes.
Mandatory vaccines in care homes
New regulations, which will make it mandatory for a person working in a care home to have the Covid-19 vaccine, have been approved by Parliament and will come into force on 11 November. They oblige care home providers to ensure that any non-resident over the age of 18 does not enter the home unless they can prove that they have been double vaccinated or are medically exempt, although certain exceptions apply. The regulations also require those providing professional services in a care home (such as cleaning, maintenance and catering) to be vaccinated.
Unvaccinated persons may still enter the premises in certain limited circumstances, such as to provide emergency assistance; to visit a resident as a friend or relative; or to visit someone who is dying or has been bereaved.
There is now a 16 week ‘grace period’ to enable care home employees to receive both vaccine doses and to enable employers to put measures in place to check the vaccine status of their staff, including those who are exempt under the regulations. In these circumstances, you are likely to find that you can point to a legitimate reason for seeking vaccination data from your staff, even though it is clearly special category data for data protection purposes. You should nevertheless consider the ICO guidance on vaccination status checks and take advice if you are unclear whether you are properly adhering to the rules. You should also seek advice if you meet strong resistance from your workforce and are considering terminating the contracts of staff who are unwilling to comply.
For an article by our employment team considering the issues that arise where vaccination is not mandatory, see here.
If you are affected by any of the above points and require assistance, please get in touch.