On 16 August 2021, the rules regarding self-isolation when individuals are identified by NHS Test and Trace as being a close contact of a positive COVID-19 case are due to change. This article answers some of the questions we are most frequently asked by employers about the new self-isolation rules.
When will someone who has been identified as a close contact of a positive COVID-19 case after 16 August 2021 be exempt from self-isolation?
The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) (Amendment) Regulations 2021 provide that, from 16 August 2021, the following individuals 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:
- Those aged 18 or under
- Those who have been: (a) double vaccinated; and (b) who had their second COVID-19 vaccination at least two weeks prior to coming into close contact with the positive case
If individuals who meet these criteria are identified as close contacts of a positive COVID-19 case, they will be advised to take a PCR test, to detect the virus and identify any variants of concern. They will become legally required to self-isolate if they themselves test positive for COVID-19.
Worked examples:
- Bob, who is 45, received his second vaccination in June. On 17 August, Bob's girlfriend Sarah tests positive for COVID-19. Although Bob is identified as one of Sarah's close contacts, he does not need to self-isolate because he is double vaccinated. He will be advised to take a PCR test and will only need to self-isolate if he tests positive for COVID-19.
- Ellie is a 17-year-old apprentice. She attends a party over the weekend and, in the days that follow, several of her friends test positive for COVID-19. Although Ellie is a close contact of the positive cases, she does not need to self-isolate because she is under 18. She will be advised to take a PCR test and will only need to self-isolate if she tests positive for COVID-19.
- James, who is in his 30s, had his second vaccination on 15 August 2021. On 17 August, he is notified that he has been in close contact with a positive case of COVID-19. James must self-isolate. He is not exempt from self-isolation because less than two weeks has passed between him receiving the second dose of COVID-19 vaccination and his contact with the positive case.
Does someone who is given a notice to self-isolate before 16 August 2021 need to continue to self-isolate beyond that date?
This depends on their individual circumstances. The regulations contain a transitional provision which means that:
- If the individual meets the qualifying criteria (ie they are under 18, or became double vaccinated at least two weeks prior to coming into close contact with a positive case), then their duty to self-isolate ends at the beginning of 16 August 2021 (meaning that their last day of mandatory self-isolation will be 15 August 2021).
- If the individual does not meet the qualifying criteria, they must continue to self-isolate until the period specified in their self-isolation notice expires.
Worked examples:
- Jane is given a notice to self-isolate for 10 days on 11 August 2021, which specifies that her period of self-isolation is due to end at midnight on 20 August 2021 (with her first day of ‘freedom' from self-isolation due to fall on 21 August 2021). She is aged 35 and had her second COVID-19 vaccination in May 2021. Her duty to self-isolate ends at 00.01 on 16 August 2021 (meaning that her last day of mandatory self-isolation falls on 15 August 2021).
- Tim is given a notice to self-isolate for 10 days on 11 August 2021, which specifies that his period of self-isolation is due to end at midnight on 20 August 2021. He is 21 and has only had his first COVID-19 vaccination, so he is not eligible for early release from the duty to self-isolate. His duty to self-isolate therefore ends at midnight on 20 August 2021 (meaning that his first day of ‘freedom' from mandatory self-isolation starts at 00.01 on 21 August 2021).
Does an employer need to check that their worker is eligible to be exempt from the duty to self-isolate?
It should be relatively easy to identify staff aged under 18
from their personnel records. Identifying those who are double
vaccinated may be more difficult because, in our experience, most
employers are not currently requesting or processing vaccination
records of staff because of privacy and
data protection concerns.
The legal duty to mandatorily self-isolate rests primarily with the
individual to whom the Test and Trace notice is issued. An employer
commits an offence if they ‘knowingly' allow someone
who ought to be self-isolating to attend work, but the regulations
do not place any positive obligation on an employer to check
whether their worker is eligible for the exemption from
self-isolation.
We anticipate that NHS Test and Trace will consider possible
exemptions when issuing self-isolation notices to those who have
been in close contact with a positive case. Nevertheless, it is
advisable for an employer to notify staff in advance of 16 August
2021:
- Of the change to the rules regarding self-isolation
- That, by attending work after receipt of a notice to self-isolate, they are confirming that they fall within one of the exemptions from the duty to mandatorily self-isolate
- That, if they attend work when they should be self-isolating, this is considered a serious disciplinary offence, which may lead to disciplinary action including dismissal
Do these relaxed rules apply to notices to self-isolate received via the NHS contact tracing app (the ‘pingdemic')?
No, the duty to self-isolate following a notification from the NHS app has always been entirely voluntary; it is not a mandatory legal requirement. These more relaxed rules only relate to notices to self-isolate received from NHS Test and Trace, and/or local public health teams. However, the government has suggested it is looking at reducing the sensitivity of the app, so that fewer individuals receive notifications recommending self-isolation.
How will these relaxed rules apply to school children being sent home to self-isolate?
Schools have previously undertaken responsibility for contact tracing in respect of their pupils and have sent pupils home to self-isolate (often in whole class or year group ‘bubbles'). The Department of Education has issued updated guidance, confirming that schools are no longer expected to undertake contact tracing for pupils. When schools return in September 2021, NHS Test and Trace will identify the close contacts of a positive case. Children under 18 years old will no longer be required to self-isolate and will be advised to take a PCR test instead. This should greatly reduce the burden employers face when staff are unable to work because their child has been sent home to self-isolate for precautionary reasons.
Does someone who is double vaccinated, or under 18, who tests positive for COVID-19 via their own PCR test need to self-isolate?
Yes, if someone who is ordinarily exempt because they are under 18, or double vaccinated, later tests positive following their own PCR test they will be legally required to self-isolate.
Worked examples:
- Bob, who is 45, received his second vaccination in June. On 17 August, Bob's girlfriend Sarah tests positive for COVID-19. Although Bob is identified as one of Sarah's close contacts, he does not need to self-isolate because he is double vaccinated. Following advice from NHS Test and Trace, Bob takes a PCR test. On the 19 August, he receives a positive COVID-19 test result. He must immediately commence self-isolation.
- Ellie is a 17-year-old apprentice. She attends a party over the weekend and, in the days that follow, several of her friends test positive for COVID-19. Although Ellie is a close contact of the positive cases, she does not need to self-isolate because she is under 18. Following advice from NHS Test and Trace, Ellie takes a PCR test. Two days later, Ellie receives a positive COVID-19 test result. She must immediately commence self-isolation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
