On 28 September 2020, the Health Protection (Coronavirus, Restrictions) (Self Isolation) (England) Regulations 2020, known as the “lockdown regulations,” came into force.
The regulations prescribe mandatory periods for self-isolation and impose specific legal obligations on employers and workers.
Requirements to self-isolate
A worker has a legal obligation to self-isolate when informed, after 28 September 2020, that: (a) they have tested positive for COVID-19; (b) they have had close contact with someone who has tested positive and that person is in an isolation period; (c) a child under 18 who the worker is responsible for has tested positive; or (d) the child has had close contact with someone who has tested positive within their isolation period.
The requirements to self-isolate apply where a worker has been notified by the secretary of state, a person engaged for the purposes of the health service (which could include NHS Track and Trace) or a person engaged by a local authority. Notification by way of the NHS Covid 19 smartphone app is excluded by the regulation and does not trigger the legal requirement to self-isolate.
The self-isolation periods depend on if an individual has symptoms of COVID-19, has tested positive or has been in close contact with some who has.
Those with symptoms or who test positive must self-isolate for 10 days from the date those symptoms started or, if asymptomatic, 10 days from the date of a positive test (although, if symptoms arise after a test, the 10-day period runs from when the symptoms start). If symptoms continue after the 10-day period, individuals must self-isolate until the symptoms have gone.
Those who live with someone or who are in a support bubble with someone who has symptoms of COVID-19 or tests positive, must self-isolate for 14 days from when that person started having symptoms or from the date of the positive test, if asymptomatic. The prescribed periods of isolation are strict; a negative test result during the self-isolation period does not terminate the isolation period, given the potential incubation period of COVID-19.
However, where a member of an individual’s household or bubble is required to self-isolate because of contact with someone outside the household or bubble who has tested positive, it appears that other household or bubble members are not legally required to self-isolate.
Obligation on employers of workers required to self-isolate
Regulation 7 prohibits employers from knowingly allowing workers (including agency workers) who have tested positive for COVID-19, or live with a person who has tested positive, to work anywhere other than the worker’s self-isolation location. The employer now has a positive obligation to stop a worker from working, unless they can work whilst self-isolating at home.
Employers will be fined at least £1,000 for the first offence of failing to discharge their obligation in respect of each worker. Fines of £2,000 will be given for the second offence, £4,000 for the third and £10,000 for any additional offences.
Notification by workers of obligation to self-isolate
The regulations also impose an obligation on workers, who are aware of the requirement to self-isolate and who are due to attend a place of work (other than their isolation location), to disclose to employers that they must self-isolate, including the start and end dates of their period of self-isolation.
The worker must notify the employer as soon as reasonably practicable or before they are due to attend their place of work within the self-isolation period. Individuals who breach the obligation to self-isolate would be committing a criminal offence under regulation 11 and will be liable for fines of £1,000, up to £10,000 for repeat offences.
Given the seriousness of the risks associated with failing the regulation 7 and 8 obligations, employers must, as part of their wider risk assessment and COVID-secure workplace strategy, implement an efficient notification procedure to communicate with workers and manage self-isolating workers and business needs. Workers must be made aware of their obligation to self-report, to whom and the implications for failing to do so, which could include disciplinary action.