Drafting a Covid-19 Test and Trace protocol for the workplace

In this article we provide some guidance to employers on developing a protocol for managing a Covid-19 outbreak in the workplace and for supporting the NHS Test and Trace system. This is one of the steps we recommend employers to take in our ten-step guide to opening an office safely and compliantly which can be found here.

As well as safeguarding their own employees, employers have an important part to play in the national Test and Trace system which has been up and running in England since 28 May 2020.

The rationale for the system, for which around 25,000 volunteers have been recruited to assist, is to ensure that anyone who has symptoms of Covid-19 can promptly be tested in order to confirm whether he or she has the virus, and (if so) to trace their recent close contacts who may themselves be asked to self-isolate at home. It is hoped that these measures will form a key part of the strategy to keep the virus’s reproduction rate (known as the “R number”) as low as possible. The system also includes the testing of certain asymptomatic people such as NHS and social care staff and residents of care homes.

Over 8,000 people who tested positive for Covid-19 between 28 May to 3 June had their case transferred to the NHS Test and Trace system. Just over 5,400 of these were reached by the contract tracing team and just under 30,000 people were advised to self-isolate as a result of the contacts identified via the system.

Although the system is voluntary, all will be expected to participate as a civic duty in order to keep the reproduction rate down below 1, so that the gradual easing of the lockdown can continue. 

1. What does this mean for employers?
2. What is the NHS’s procedure?
3. What is “self-isolation”?
4. How should employers play their part?
5. The employer’s response protocol – what needs to be put in place now?
6. Workplace testing to diagnose virus within hours?
7. Antibody tests
8. Reluctant employees

1. What does this mean for employers?

Employers should view their role as two-fold:

• discharging their usual health and safety obligations to ensure, so far as reasonably practicable, the health and safety of their employees: these obligations have not changed but of course have very different implications following the Covid outbreak; and
• playing their part in the national strategy by championing the test and trace programme in order to keep the reproduction rate as low as possible and to minimise the risk of having a large swathe of their workforce being told to self-isolate.

2. What is the NHS’s procedure?

We recommend that employers ensure that all staff are aware of the NHS’s test and trace procedure and that they develop an internal protocol for employees to follow, based on the government’s guidance. The protocol should require those who think they are suffering from symptoms to:

1. self-isolate immediately;
2. inform the NHS as soon as possible;
3. obtain a test to find out if they have coronavirus; and
4. where possible, write down their recent close contacts whilst they await the results in case the test comes back positive.

Employees should be aware that the sooner they have a test, the sooner they can find out if they must remain in self-isolation. At this stage, before the test result is known, those who have been in close contact with the person displaying symptoms do not need to self-isolate, but should take extra care in social distancing and good hygiene, and should also watch out for symptoms themselves.

Tests can be ordered through the NHS website, or by calling 119. There are now several ways to be tested, such as drive-through regional testing sites, mobile testing units and test kits delivered to your home. The NHS aims to provide the results to the test, which will also include advice on what to do next, within 48 hours.  

If a person is given a positive result, they (and other members of their household) must continue to self-isolate. The NHS will contact the person who has tested positive and will ask for information about any close contacts they had just before and after developing symptoms. They will be sent a link to the NHS test and trace website where details about recent close contacts can be recorded. This includes other members of your household as well as those you have been in direct contact with, or within two metres of, for more than 15 minutes.  Those contacts will be at risk of having been exposed to the virus.  The NHS will then assess whether it needs to contact these individuals to explain what they must do to help prevent the further spread of the virus, which may involve being asked to self-isolate themselves.  The information shared will also need to include places the individual has recently visited

It is important that these individuals follow the advice they are given even where they are not experiencing any symptoms: if they have been infected, they could be infectious to others at any point up to 14 days. If there are no symptoms, individuals should not seek a test, as the scientific evidence suggests that the test would not be able to detect the presence of the virus.

The NHS’s technology arm continues to develop a contact tracing app, which has been trialled on the Isle of Wight to mixed results, with the intention that this will supplement the other forms of contact tracing now in effect. This works by using Bluetooth signals to detect when two phones come close to each other. Anyone who becomes unwell with Covid-19 symptoms can notify the app, which then informs other users.

3. What is “self-isolation”?

A person who tests positive for the virus must complete a seven day period of self-isolation and longer if symptoms persist according to government guidance.

The government has advised that individuals must self-isolate for 14 days after contact with any person who has tested positive. This is crucial to avoid these persons from unknowingly spreading the virus, as they may not be showing any symptoms.

Self-isolation involves staying at home and not going outside at any time. If anyone who is asked to self-isolate lives with other people, they do not themselves need to self-isolate, but should avoid contact with the isolating person as far as possible. Where isolating persons do not live with other people, they should where necessary seek help from others, or delivery services, for essential activities such as food shopping. Local authorities will offer a helpline for support with these matters.

4. How should employers play their part?

The government has confirmed that the system is voluntary, as citizens are trusted to “do the right thing” (although if that does not work out the Health Secretary has raised the prospects of making the Test and Trace team’s requirements mandatory).

Whilst the system (at least for now) relies on the goodwill and common sense of those involved, employers should ensure that the need for employees to cooperate is made clear from the outset and must support workers who are told to self-isolate. During that time, they must not be asked to attend work outside of their house.

Those in self-isolation are entitled to Statutory Sick Pay (SSP) during that time, provided they meet the usual eligibility conditions. The NHS test and trace service will provide employees with a notification which can be used as evidence. SSP is payable at around £95 per week.

Recent news stories have suggested that, as part of the government’s endeavours to increase the number of tests carried out every day, officials from the business and health departments are in talks with larger employers about plans to conduct “workforce testing” within firms themselves. As part of this scheme, there are plans to roll out devices that diagnose Covid-19 within two hours, without the need for tests to be confirmed in an external laboratory.  There are also tentative steps towards a scheme in which antibody tests are delivered to employers so that they can produce what are in essence “immunity passports”. These are considered in further detail below.

5. The employer’s response protocol – what needs to be put in place now?

If an employee has tested positive for Covid-19, or receives an alert from the NHS Test and Trace team telling them of recent exposure to someone with symptoms, employers should take immediate action based on a detailed response protocol which is tailored to the specifics of the workplace.

We suggest the protocol deals with the following key matters:

• who is responsible for overseeing the execution of the protocol when the need arises, and who is to deputise if the employee with primary responsibility is absent;
• when the protocol is triggered: this may be only when a staff member tests positive or exhibits symptoms, but could (and perhaps should) include contact tracing alerts; 
• encouraging an employee who has developed symptoms to both get a test as soon as possible and (if they test positive) to notify the NHS Test and Trace system. Such employees must be required to remain at home;
• how relevant members of staff are to be informed that an employee has tested positive for the virus, and which sub-groups are to be covered (e.g. those working in the same team or department);
• encouraging those within their team or who has been working with them (and anyone else who is experiencing symptoms) to come forward and get tested as soon as possible;
• seeking details from the employee (where possible) of the persons with whom they have been in contact in the course of their work and checking their calendar;
• requiring employees who have been in contact with an employee who has tested positive to remain at home and not attend the workplace for 14 days;
• ensuring where possible that the office occupied by the employee who tests positive is thoroughly cleaned and that all objects and surfaces which the employee may have touched are cleaned and disinfected; and
• information for managers and staff on the course of the illness and what symptoms to look out for.

These steps are important to ensure that the news of a positive test for a staff member within the office is less likely to become widespread (therefore protecting the privacy of the affected staff member, as is required under data protection legislation), whilst ensuring that the risk of a spread of the virus within the office is minimised. Key points to consider in relation to staff privacy and data protection can be found in our discussion here.

6. Workplace testing to diagnose virus within hours?

The Sunday Telegraph of 14 June reported that the government is talking to employers about conducting “workforce testing” including with devices that diagnose Covid-19 within two hours, without the need for samples to be sent to a lab. This would clearly be very useful for employers to enable them to decide quickly whether an employee has to stay at home and whether others have to be sent home to self-isolate. However, those who test negative may still need to self-isolate in accordance with the test and trace system because of previous exposure to staff who have tested positive: the two-hour tests may not identify those who are pre-symptomatic because they were only recently exposed.  

7. Antibody tests

The same Sunday Telegraph report also said that Ministers are discussing how employers could carry out antibody tests, potentially allowing employees to be given “immunity passports” once there is stronger evidence about the link between antibodies and immunity from reinfection. This will, assuming the presence of antibodies is a strong indicator of immunity, assist employers to ensure business continuity by retaining a core of immune employees who will be outside the scope of test and trace protocols.

8. Reluctant employees

What can a business do if an employee is reluctant to participate in contact tracing or take a test? 

Although the national scheme is voluntary, at least for the time being, it is arguable that asking an employee to participate in internal contact tracing or to follow the NHS Test and Trace team’s instructions falls within the employer’s powers to issue lawful and reasonable instructions. 

However, it is possible that an employee may consider requiring them to be tested to be overly invasive and a breach of the employer’s implied duty of trust and confidence, and accordingly a basis on which to claim he or she was constructively dismissed. On the other hand, the employer may argue that it had “reasonable and proper cause” to require tests to be obtained for its employees, in which case there would be no breach. 

Employers should nevertheless be wary of adopting an overly legalistic approach, particularly given that the practicalities will be in their favour: if the business would need to close or send staff home unless it undertook testing, employee consent may be readily obtained.

Contact us

If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak with your usual Fox Williams contact.

Articles and commentary by our legal experts on the impact of Covid-19 are all available here.