Coronavirus Q&A - What you need to know

Our Q&A aims to inform employers about what they need to know and how to deal with the issues raised by coronavirus, scroll down for more information on what you can do and what support there is if coronavirus is having an impact on your business. This is an extremely fluid situation with information and guidance regularly being updated. 

Following the Budget 2021 announcement on Wednesday 3rd March, this Q&A is in the process of being updated.

For further advice, NFU Employment Service members can contact our Employment Specialists on 0370 840 0234.

Guidance and information is changing regularly, contacting our Legal Helpline will ensure that you are receiving advice on the current legal and best practice position.
 

Click on a question to show its answer.

The pace at which the news and law developed at the start of the pandemic has significantly slowed down, but we are clearly not out of this situation, and so there still needs to be a ‘watch this space’ approach for any further changes that may be brought in.

Employers should be communicating with their workforce about what steps are being taken and ask employees to tell them if they have any symptoms or have tested positive for Covid-19, or live with someone or are in a support bubble with someone who has symptoms etc.

As well as the information that we have included in this Q&A, we also have further guidance on our website: COVID-Secure - What you need to know.  

ACAS have issued guidance for employers: https://www.acas.org.uk/coronavirus.

There is also NHS guidance available for anybody concerned about steps they can take to look after themselves and others:  https://www.nhs.uk/conditions/coronavirus-covid-19/, including information on the most effective and best way to wash your hands: https://www.nhs.uk/live-well/healthy-body/best-way-to-wash-your-hands/.

There is an online coronavirus hub set up by the government here: https://www.gov.uk/coronavirus where it is also possible to sign up for email alerts of any changes.

The Welsh Government have their own webpage with information for employers in Wales: https://gov.wales/business-and-employers-coronavirus

If self-isolation is necessary there is guidance on who should self-isolate and how to do this properly as it involves more than simply staying at home: https://www.nhs.uk/conditions/coronavirus-covid-19/self-isolation-advice/

One of the key pieces of advice is to keep in contact with your employees no matter what reason they may be away from the workplace, so that you can keep them updated with any developments or changes affecting their employment and to offer support where you are able to do so.

If an employee is unwell at work and displays symptoms of the coronavirus they should be sent home immediately, encouraged to get tested as soon as possible and advised to use the NHS Online Coronavirus service: https://www.nhs.uk/conditions/coronavirus-covid-19/ for further advice. The NHS 111 service should only be used where support is not available online. Try to avoid them in coming into contact with others in the workplace and to avoid touching anything if they can and to use a separate bathroom to the rest of those who may be in the same workplace.

Your normal sick pay entitlements will apply in these cases, unless the employee is able to work from home whilst they are self-isolating.

It is a legal requirement for those who have tested positive or have been notified by NHS Test and Trace or, Test, Trace and Protect to self-isolate. Fines for breaching this requirement start from £1000 and can increase up to £10,000 for the repeat offences and ‘the most egregious breaches’.

If an employee or worker has been diagnosed as having coronavirus (COVID-19) and there is reasonable evidence that it was caused by exposure at work, it must be reported as a case of disease in accordance with Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR). More information is available here.

Employers should call the Self-Isolation Service Hub on 020 3743 6715 as soon as they are made aware that any of their workers have tested positive.

Employers will need to provide the 8-digit NHS Test and Trace Account ID (sometimes referred to as a CTAS number) of the person who tested positive, alongside the names of co-workers identified as close contacts. This will ensure that all workplace contacts are registered with NHS Test and Trace and can receive the necessary public health advice, including the support available to help people to self-isolate.

Currently there is no guidance advising that you should automatically close the workplace where an employee has attended the workplace and is suspected or known to have coronavirus. Employers are advised to follow cleaning guidance: https://www.gov.uk/government/collections/coronavirus-covid-19-list-of-guidance#guidance-for-non-clinical-settings.

If there is an outbreak of COVID-19 within the workplace, employers should notify the local public health protection team for further advice.  The heath protection team will undertake a risk assessment, provide public health advice, and where necessary, establish a multi-agency incident management team to manage the outbreak. Details of how you can find your local health protection team in England are here, and in Wales are here.

Workplace guidance states that employers should notify any close workplace contacts of the person who has tested positive and ask them to self-isolate to help reduce the risk of a workplace outbreak, unless they are exempt from self-isolation. See here for more information on who would be a close contact. Unless they have been advised by NHS Test and Trace, or Test, Trace and Protect to self-isolate they are not legally obliged to, however such an instruction could still be a reasonable instruction from an employer. For more information about this please see ‘What if an employee should be self-isolating but refuses to?’

Unless any other of the employee’s colleagues have been advised by the NHS Test and Trace or Test, Trace, Protect service to self-isolate, they should continue working but they should follow advice on how to avoid catching and spreading COVID-19.

There is a legal duty upon those who are legally required to self-isolate to inform their employers of this with the start and expected end date of self-isolation. This information should be given as soon as reasonably practicable and, in any event, before they are next due to start work within the isolation period. A fixed penalty notice for £50 may be issued for any breach of this requirement. Employers who prevent or try to prevent others from self-isolating will also face the same level of fines. It is still reasonable to expect those who can, to work from home whilst self-isolating but employers must not ask, encourage or expect those who are required to self-isolate to come into the work place.

Workers will need to self-isolate in the following circumstances, unless they are exempt from self-isolation:

  • If they have symptoms of coronavirus – see ‘What to do and what to pay if an employee is advised to self-isolate?
  • If they are:
  • waiting to have a test, or
  • waiting for the results of a test, or
  • have tested positive for coronavirus – see ‘What to do and what to pay if an employee is advised to self-isolate?
  • (Unless they are exempt due to vaccinations) if someone they live with, or share a support bubble with:
  • has symptoms of coronavirus, or
  • is waiting for a test, or
  • is waiting for the results of a test, or
  • has tested positive for coronavirus – see ‘What to do and what to pay if an employee is advised to self-isolate?’
  • If they are a UK resident or visitor to the UK and have arrived in the UK from 8 June 2020 onwards, unless
    • they are covered by an exemption, or
    • they have arrived from one of the countries not on the government’s red list and they are fully vaccinated.
      See ‘Will any of my existing or new workers have to self-isolate when they arrive or return to the UK?
  • If they have been contacted by NHS Test and Trace/Test, Trace and Protect – see ‘What happens if any of my workers are contacted by the NHS Test and Trace or Test, Trace, Protect service?
  • If you have asked them to self-isolate as a precaution to prevent an outbreak within the workplace following a positive case of coronavirus at the workplace.
  • If they are self-isolating on or after 26 August 2020 because they have been advised to by a doctor or healthcare professional before going into hospital for surgery.

There is a guidance on the NHS website about how long and when a person needs to self-isolate where they have been tested and what to do when a test comes back positive, negative or inconclusive, as a negative test does not always mean that the self-isolation can immediately end.

Fully vaccinated close contacts

England

Individuals in England who are fully vaccinated and are household contacts or have been identified as a close contact of a positive COVID-19 case are no longer legally required to self-isolate. They will be advised to take a PCR test and if this is positive, they must then self-isolate regardless of their vaccination status. This means that there will be less people having to self-isolate but with more of a focus upon testing as a way to control the virus. Under 18-year olds who are a contact of a positive case will also be exempt but will be advised to take a PCR test. In England the guidance states that 18-year olds will be treated in the same way as under 18-year-olds until 6 months after their 18th birthday to allow them the opportunity to get fully vaccinated.

Fully vaccinated means that you have been vaccinated with an MHRA approved COVID-19 vaccine in the UK, and at least 14 days have passed since you received the recommended doses of that vaccine.

Wales

Since 29 October 2021, those in Wales will still need to self-isolate if they are a household contact or have been identified as a close contact of someone with coronavirus. However, adults who are fully vaccinated and children aged five to seventeen can stop self-isolating once they have received a negative PCR test result.

People are ‘fully vaccinated’ after 14 days since their second jab. The Test Trace Protect (TTP) service will provide a ‘warn and inform’ service where they will provide guidance on how contacts should protect themselves and stay safe. TTP will continue to recommend that these people take a PCR test on day 2 and 8.

You are considered to be fully vaccinated in Wales, if it is at least 14 full days since you had the full dose of an MHRA, EMA or FDA approved vaccine administered in the UK.

Further information is available in the NHS Test and Trace in the workplace guidance.  

Daily contact testing study

In order to avoid any potential disruption to some crucial services, targeted daily testing for certain critical workers in England has also been introduced so that contacts who would otherwise be self-isolating due to receiving an alert from the NHS Covid 19 app or who have been called by NHS Test and Trace can instead take daily tests and continue working. They must test negative and have no symptoms of coronavirus. Currently only frontline emergency services, some transport workers, frontline Border Force staff and supermarket distribution centres are part of the scheme. Daily contact testing is only available to workplaces that have been approved to take part in the scheme.

Employers taking part in the scheme receive training to ensure they are able to provide daily contact testing safely and effectively.

Those sites approved for workplace daily contact testing will be able to continue providing this service after 16 August 2021 for contacts who are not exempt from self-isolation. The government will keep under review the duration of the scheme.

Critical services

The temporary scheme where employers could apply for exemption from self-isolation for specific named individuals has now ended.

The standard period of self-isolation is 10 full days. The self-isolation period includes the date the symptoms started (or date of the test if there are no symptoms) or the date of the last contact with the other person, and the next ten full days. Please refer to the latest NHS guidance on exactly how long a person must self-isolate for, including occasions where a person has symptoms for a further time.

It is a legal requirement for those who have tested positive or have been notified by NHS Test and Trace or Test, Trace and Protect to self-isolate. Fines for breaching this requirement start from £1,000 and can increase up to £10,000 for repeat offences and ‘the most egregious breaches’.

There is a legal duty upon those who are legally required to self-isolate to inform their employers of this with the start and expected end date of self-isolation. This information should be given as soon as reasonably practicable and, in any event, before they are next due to start work within the isolation period. A fixed penalty notice for £50 may be issued for any breach of this requirement. Employers who prevent or try to prevent others from self-isolating will also face the same level of fines. It is still reasonable to expect those who can, to work from home whilst self-isolating but employers must not ask, encourage or expect those who are required to self-isolate to come into the workplace.

SSP regulations have been amended to include self-isolation because somebody has symptoms or is living in the same household or shares a support bubble with another person who has symptoms or where advised by NHS Test and Trace or Test, Trace, Protect to self-isolate to prevent the spread of coronavirus. Those who have been advised by a doctor or healthcare professional to self-isolate before going into hospital for surgery are also eligible.

In addition, where a person is entitled and eligible for SSP due to coronavirus, it should be paid from day 1 as the usual 3 waiting days requirement has been abolished for these types of cases. However, there must still be a period of incapacity for work, this is any period of four or more consecutive days, each of which is a 'day of incapacity for work'.

An employee can self-certify their own sickness for the first 7 days and some may do this where they believe they have the coronavirus or symptoms of it. The Government have “strongly suggested” employers to be more flexible and exercise discretion where an employee may not have a fit note, but “isolation notes” are now available from NHS 111 Online, NHS mobile phone app and the NHS website, so employers should be accepting these as suitable evidence. The NHS Test and Trace or Test, Trace, Protect service will provide a notification that can be used as evidence that someone has been told to self-isolate.

There is no legal obligation to pay full pay where an employee is self-isolating but they are not unwell, and it is clear that an employer need only pay SSP where an employee qualifies for it. Where possible it is good practice to consider paying full pay to prevent an employee from coming to work and risk spreading the virus to others. Employers will need to take special account of those employees who don’t qualify for SSP.

Where an employee is off sick because they are unwell due to coronavirus, then normal sick pay rules apply, and if there is a contractual sick pay entitlement this should be paid. Where an employee has been diagnosed with coronavirus, the right to receive SSP from day one will apply, assuming that they meet the rest of the eligibility criteria.

It is entirely at your discretion to pay anything more than what you are legally obliged to pay to an employee who is self-isolating. If you choose to exercise discretion, it should be made clear how long the additional payments will last for and under what circumstances they will be paid, otherwise there is a risk that custom and practice will deem those additional payments to become a contractual right of the employee for the future.

There are also measures in place to provide funding through state benefits such as Employment Support Allowance or Universal Credit to those employees who wouldn’t ordinarily qualify for SSP or other sick pay. 

If your employee is off sick with coronavirus then AWSP should be paid as normal. Where your employee has been advised to self-isolate then strictly speaking they would only be entitled to SSP as per the new legislation.  However, ACAS guidance advises employers should be reasonable and treat self-isolation as sickness in accordance with their normal sickness policy.  Therefore, this would suggest that employers should consider paying eligible agricultural workers AWSP where they are self-isolating.

In England only, from 28 May 2020 a new NHS Test and Trace service was launched. NHS Wales launched their own similar version, called NHS Wales Test, Trace, Protect on 1 June 2020.

Both services provide testing for anyone who has symptoms of coronavirus to find out if they have the virus and then gets in touch with anyone who has had a positive test result to help them share information about any close recent contacts they have had. The service will then alert those contacts, where necessary, and notify them they need to self-isolate to help stop the spread of the virus.

There is specific guidance for employers in England here and in Wales here.

It is a legal requirement for those who have tested positive or have been notified by NHS Test and Trace or, Test, Trace and Protect to self-isolate. Fines for breaching this requirement start from £1000 and can increase up to £10,000 for the repeat offences and ‘the most egregious breaches’. If a person is notified or ‘pinged’ via the NHS COVID-19 app, they are not legally obliged to self-isolate but the guidance is that it is advisable that they do so, with the government going further by stating it is crucial that such individuals self-isolate. The app can ‘ping’ a person to either advise them to be aware and consider having a test where the app has detected that they have been to a venue where there has been a positive case, or to self-isolate where the individual has been in close contact with a person/s who have tested positive.

If your worker is having to self-isolate, please see ‘What to do if your employee has coronavirus?’ for further information.

When someone first develops symptoms and orders a test, they will be encouraged to alert the people that they have had close contact with in the 48 hours before symptoms onset. If any of those close contacts are co-workers, the person who has developed symptoms may wish to (but is not obliged to) ask their employer to alert those co-workers. At this stage, those close contacts do not have to self-isolate, but they should follow the guidance on how to stay safe and prevent the spread of COVID-19. In this circumstance they can arrange to take a PCR test, even if they do not have symptoms, because they may be at higher risk of being infected.

If the person who has symptoms has a positive test result for COVID-19, the NHS service will ask them to share information about their close recent contacts.

Any non-household contacts who need to self-isolate will be contacted by the NHS service. They will receive a formal notification (either a phone call, letter, email or text message) setting out how long they need to self-isolate for.

The NHS service will provide a notification that can be used as evidence by workers to inform their employer that they have been told to self-isolate. Employers will need this evidence if they are going to claim a rebate for Statutory Sick Pay.

In most cases the period of self-isolation for those in England will be for 10 full days from the point of most recent contact with the person who has tested positive for coronavirus. The isolation period includes the date of last contact with the person who has tested positive and the next 10 full days.

In some circumstances, the NHS service will ask the person who has tested positive to take a follow-up COVID-19 test. If this second test result is negative, they will be able to end their self-isolation. If this happens the NHS service will contact any close contacts who had started to self-isolate to let them know that they can now stop – they must not stop self-isolating until they have been specifically advised that they can do so by the NHS service.

Those who are notified as being a close contact and are not fully vaccinated will be able to have a PCR test during their 10-day self-isolation period. The purpose of the test is to help identify if the close contact has contracted the virus themselves but not displaying symptoms and to attempt to break the chains of transmission. The full 10-day period will need to be completed even if there is a negative PCR test.

If it is likely that it is working with others which has triggered these notifications, employers should consider what further actions could be taken to reduce the risk of COVID-19 and review what steps they have taken in making the workplace COVID-19 secure. For further information on this please see – ‘'COVID-secure' What you need to know.

Designated venues no longer need to display an official NHS QR code poster to enable customers and visitors to scan the NHS QR code when they arrive by using the NHS COVID-19 app, but they are encouraged to still do this. The information stays on the user’s phone. As you are likely to already have a record of your employees and staff, they do not need to scan the NHS QR code. However, staff can scan the QR code, in addition, if they wish. As everyone over the age of 16 is being encouraged to download and use the app, employers are also advised by the Department of Health and Social Care to facilitate and support employee use of the app within their workplaces wherever possible, although use of the app is not mandatory. More information on NHS Test and Trace within the workplace is available here.

In England and Wales, anybody showing symptoms of coronavirus can be tested by making a request through the NHS website. People should not request a test ‘just in case’. Tests should only be requested where somebody has symptoms or they have been asked or advised to get a test eg before going into hospital for surgery, or by the local council, or when taking part in a government pilot project. Where a person has symptoms, they will be given a PCR test which is then tested in a lab.

Essential workers who are showing symptoms of coronavirus will be prioritised for PCR testing through the NHS. This will help in providing reassurance of knowing whether symptoms are caused by coronavirus and help workers to decide whether they are well enough to return to work. Anybody with symptoms should book a test online. Essential workers include critical personnel in the production and distribution of food, drink and essential goods, including:

  • those involved in food production, processing, distribution, sale and delivery
  • those critical to the provision of other essential goods, such as medical supply chain and distribution workers, including veterinary medicine
  • workers critical to the continuity of essential movement of goods

The full list and details of what is an  essential worker for England can be seen here and for Wales can be seen here.

Local authorities in England are being encouraged by the Department of Health and Social Care, to offer asymptomatic testing in the community and to target those who are unable to work from home. These tests are usually Lateral Flow Device (LFD tests) which are simple and quick to use but are not always as accurate as a PCR test. For more information on how this may help you and your workforce, contact your local authority to see if they are offering this service. People can also do their own LFD tests at home and are encouraged to do so twice a week. Details of where to obtain the testing kits can be found here.

For some employers there will be a duty to take reasonable steps to facilitate employees to take COVID-19 tests, please see ‘What duty is there on employers to facilitate the testing of employees?’ for more information on this.

For more information on COVID-19 testing in the workplace and the implications this may have for employers, please see our separate Q&A: COVID-19 testing and vaccinations in the workplace.

The important point about the testing being done at this stage is that it will only identify whether the individual has COVID-19 at the moment; it will not say whether they have had COVID-19 already and are now recovered, or whether they have any antibodies or immunity. Antibody testing is not yet widely available and home antibody tests are not currently recommended.

Testing is not compulsory for anybody, and employers don’t have the automatic right to insist that their employees are tested, or that employees who have been tested share their results with their employer. An employer may be able to argue that being tested and a requirement to share results is a reasonable instruction from a health and safety perspective, and any unreasonable failure to follow that instruction could be a misconduct matter. This in turn may result in disciplinary action but investigation of the facts will be essential, including why the employee refused. In many cases it is not likely to amount to gross misconduct but if an employer is considering any disciplinary action, including dismissal, they should seek advice from CallFirst in the first instance.

If an employee shares their test results with their employer this could be classed as data relating to their health and would constitute special category data. This type of data is personal data that needs more protection because it is sensitive. In order to lawfully process special category data, you must identify both a lawful basis under Article 6 of the GDPR and a separate condition for processing under Article 9. Employers will need to ensure that this is covered by their privacy notices and that a data protection impact assessment has been completed. For more detail on this please see specific employer guidance from the ICO concerning workplace testing: https://ico.org.uk/global/data-protection-and-coronavirus-information-hub/data-protection-and-coronavirus/workplace-testing-guidance-for-employers/.

The NHS Test and Trace service is for those who display symptoms of COVID-19 or who have been advised to take a test by a medical practitioner or public service. Employers wishing to provide a test to staff must not advise individuals without symptoms to get a test from the limited supply offered by the NHS, but may offer alternative private provision, in accordance with the latest guidance. If you are contemplating arranging your own testing for your employees, whether they have symptoms or not, you are strongly advised to read and follow all of the published guidance.

Your local authority may also be offering community testing for asymptomatic people, particularly those who are unable to work from home. Contact your local authority for more information.

The guidance currently applies to England only and there is a workplace testing framework applicable to Wales.

Government funding for LFD tests for employers has now ended. Employers will either need to pay an approved provider to provide tests or run a test site for them or alternatively refer their employees to seek their own free LFD test via the NHS, although an employer should not make this compulsory on the employee.

For some employers there will be a duty to take reasonable steps to facilitate employees to take COVID-19 tests, please see ‘What duty is there on employers to facilitate the testing of employees?’ for more information on this.

For more information on COVID-19 testing in the workplace and the implications this may have for employers, please see our separate Q&A: COVID-19 testing and vaccinations in the workplace.

If you are an employer that fulfils the following definition, then you must take reasonable steps to facilitate the taking of tests by your employees:

  • you employ more than 50 employees, of which some or all are required to take workforce tests, including agency workers you are responsible for.
  • your employees are required to complete testing after international travel.

As an employer your ‘reasonable steps’ to facilitate the taking of tests for the 10 days after the employee arrives, may include:

Employers should strongly encourage their employees to complete the bespoke testing regimes but are not required to monitor that their employees are completing the test. Employers should remember that seasonal edible horticulture or poultry workers arriving in the UK  and who are not fully vaccinated should not leave the farm during the first 10 days and ensure these workers are supported to access testing without having to leave the farm.

For more information on COVID-19 testing in the workplace and the implications this may have for employers, please see our separate Q&A: COVID-19 testing and vaccinations in the workplace.

This should be treated the same as any other work shortage and you should look at whether you have the right to implement short term solutions such as lay off or short time working or more longer-term plans such as redundancy. The HELPLINE can provide advice and there is detail on our website concerning redundancies.

You could consider making use of holiday, either by agreement or by giving advance notice where this is possible. Employers have the right to require employees and workers to take annual leave at a specific time, so long as they have given twice as much notice as the amount of leave they want them to take. Agreed flexible working may also help matters.

Furlough is a new concept in UK employment law but it means the employee is on a period of leave. At the start of the pandemic the Government announced a new Coronavirus Job Retention Scheme (CJRS) where employers were able to agree with their employees to change their work status to furloughed and the Government would contribute towards the cost of the furlough wages. The scheme finally ended on 30 September 2021. If you have any queries about making claims for periods of furlough up until 30 September 2021 or amendments to any existing claims, please see our ‘Furlough Q&A - The Coronavirus Job Retention Scheme’ for more detail about furlough and the CJRS.

Measures are being announced regularly and more detail from the government can be found on support for business and self-employed people during coronavirus.

HMRC have published guidance on how employers will be able to recover coronavirus-related SSP through the Coronavirus Statutory Sick Pay Rebate Scheme (‘the scheme’).  From 26 May 2020, employers will be able to submit their claim online .

The scheme will run up until 30th September 2021 and all claims relating to prior to 30th September 2021 must be made by 31st December 2021. Beyond 30th September 2021, employers must still pay coronavirus related SSP to their entitled employees but they will no longer be able to reclaim any of these payments.

The scheme can be used by employers if they:

  • are claiming for an employee who’s eligible for sick pay due to coronavirus
  • had a PAYE payroll scheme that was created and started on or before 28 February 2020
  • had fewer than 250 employees on 28 February 2020 – this will include any type of employee

The scheme will only repay employers the rate of SSP paid (no sick pay top up is reimbursed) to current or former employees for periods of sickness starting on or after 13 March 2020.

Up to a maximum of 2 weeks can be reclaimed from the first day of sickness where an employee is unable to work because:

  • they or someone they live with (or in their support bubble) has coronavirus symptoms or they have tested positive
  • they have been notified by NHS Test and Trace or Test, Trace, Protect service to self-isolate
  • they have been notified by the NHS to self-isolate before surgery. Although SSP is still likely to be payable for the day of surgery, employers cannot recover the SSP paid for this day or any other days when the absence is not due to coronavirus.
  • they were off work because they were shielding – up until 1 April 2021 in England and Wales.

The 2 weeks maximum per employee applies regardless of how many days they are off sick or self-isolating and regardless of how many separate occasions there are. This limit only applies to what an employer may reclaim, it is not in relation to what SSP entitlement an employee may have. Where the 2 weeks maximum has been exhausted any continuing or further SSP costs will have to be met by the employer.

Waiting days for coronavirus related SSP have been abolished, although there must still be a period of incapacity for work, this is any period of four or more consecutive days, each of which is a 'day of incapacity for work'. For more information see ‘What to do and what to pay if an employee is advised to self-isolate?’

The maximum amount you can claim from the Coronavirus Statutory Sick Pay Rebate Scheme whilst it is live is limited to a total of 2 weeks of SSP multiplied by the number of employees enrolled by you in PAYE on 28 February 2020.

Employers can claim back from both the Coronavirus Job Retention Scheme and the Coronavirus Statutory Sick Pay Rebate Scheme for the same employee but not for the same period of time for that employee.

An employer’s claim amount should not take them above the state aid limits under the EU Commission temporary framework. The maximum level of state aid that a business may receive is €800,000. There is a lower maximum for agriculture at €100,000 and aquaculture and fisheries at €120,000.

To make a claim employers will need:

  • their Government Gateway ID to make an online claim
  • their PAYE scheme reference number
  • their contact details
  • details of their UK bank or building society (this must be one which accepts a BACS payment)
  • the total amount of coronavirus SSP that has been paid to employees for the claim period
  • the number of employees being claimed for
  • the start and end date of the claim period (the start date of the claim is the start date of the earliest pay period being claimed, the end date of the claim is the end date of the most recent pay period claimed for, as claims can only be made for SSP paid in arrears).

Employers can claim for multiple pay periods and employees at the same time. HMRC are writing to those employers who are unable to claim online with details of alternative arrangements for submitting their claim. If you have queries about this you should contact HMRC.

Once a claim has been made and then checked by HMRC, the monies will be paid into the employer’s account within 6 working days. 

In order to reclaim the SSP, employers will need to keep records for at least 3 years from the date of the claim showing:

  • the reason why an employee could not work
  • details of each period when an employee could not work, including start and end dates
  • details of the SSP qualifying days when an employee could not work
  • National Insurance numbers of the employees who you are claiming for

You’ll need to print or save your state aid declaration (from your claim summary) and keep this until 31 December 2024.

HMRC will have powers to recover any over or fraudulent payments made to employers. Penalties of up to £3000 can be imposed where HMRC find that employers have knowingly and deliberately provided false or misleading information to benefit from a claim.

Normally annual leave must be taken in the holiday year in which it has been accrued with no right to carry it forward to another year, subject to limited exceptions such as sick leave or family friendly leave. Due to the impact of the coronavirus on employers the Government has amended legislation so that all workers who have not been able to take all of their annual leave due to the coronavirus pandemic, will be able to carry up to 4 weeks of leave over into the next two leave years. The Working Time (Coronavirus) (Amendment) Regulations 2020 will allow this carry forward where it is not reasonably practicable for a worker to take some or all of their leave due to coronavirus. It is already possible to carry forward 1.6 weeks’ worth of leave into the following leave year by agreement and this remains unchanged by the new regulations.

Bank holidays can be included in the 4 weeks carried forward. If an employee leaves employment during the two years where leave has been carried forward they will be entitled to receive a payment in lieu of the balance of leave owing.

The Government has produced a new online guide: Holiday entitlement and pay during coronavirus (COVID-19) which gives an explanation of how holiday entitlement and pay operate during the coronavirus pandemic and where it differs from the standard holiday entitlement and pay guidance, including how furloughed employees may be affected.

If your employees are furloughed it will be possible for them to take annual leave during this time. For more detail on this please see our separate guide on furlough leave.

Where travellers to the UK would normally have to quarantine, there are exemptions for certain workers.

Seasonal edible horticultural workers

Seasonal agricultural workers who have an offer of employment for seasonal work to carry out specific activities in edible horticulture on a named farm are included in list of jobs that qualify for travel exemptions. It is important to note that this particular exemption does not extend to any other areas of farm work and is specifically in relation to seasonal workers, therefore not covering your existing permanent workers. This exemption applies in England and Wales.

Details on this exemption are available here and there is also specific guidance for workers and employers here. The legislation has defined specific activities as:

  • crop maintenance,
  • crop harvesting,
  • tunnel construction and dismantling,
  • irrigation installation and maintaining,
  • crop husbandry,
  • packing and processing of crops on employers’ premises,
  • preparing and dismantling growing areas and media,
  • general primary production work in edible horticulture,
  • activities relating to supervising teams of horticulture workers.

The exemption is not available for anybody who has been in a high-risk ‘red list’ country in the previous 10 days. These people will need to quarantine in a government approved hotel for 10 days and take a coronavirus test on day 2 and 8.

Anybody intending to rely on the exemption will need to provide in advance their contact details including where they are staying. It is important therefore, that you ensure you have given the full and correct address of the farm to the worker prior to their arrival in the UK as these workers will still need to complete the passenger locator form.

Workers will also need documentary evidence to prove they have travelled to the UK to carry out seasonal agricultural work at your farm. You will, therefore, need to ensure that you have provided this either by letter or email prior to the start of their journey. We have a template letter for employers in England to use and a separate template letter for employers in Wales to use. Both of these templates are only suitable to use where your workers are from the EU and they fall within the full seasonal worker exemption.  They are not suitable for use if your workers are from outside of the EU.

If any of your migrant workers require information (including translated information) on any health entitlements, including access to COVID-19 tests, vaccines etc you can refer them to online resources here and here.

Fully vaccinated seasonal workers

For details on who qualifies as being fully vaccinated please see ‘check if you qualify as fully vaccinated in England’ or the ‘definition of fully vaccinated in Wales’.

 Fully vaccinated seasonal workers in edible horticulture arriving in the UK will need to comply with the new system of testing for professions exempt from the normal quarantine rules. These workers do not need to take a pre-departure Covid-19 test but will need to take a lateral flow device (LFD) test on day 2, although they should be encouraged to take LFD tests twice a week whilst working on farm. They do not need to use a particular private test provider as they can be tested through the employer’s workplace testing programme (where available), community testing programmes, or at home by collecting lateral flow self-test kits from community sites, or where they are unable to collect a test they can be ordered online or by calling 119. As these tests are not booked in advance, no reference is needed for the passenger locator form. If an individual tests positive with a lateral flow test, they will be required to take a confirmatory PCR test. The individual will be required to self-isolate for 10 days from the day after the test was taken, as will anyone else in their household who is not fully vaccinated or exempt for other reasons. If the PCR test is taken within 2 days of the LFD test and there is a negative result, the employee and the cohort group/household can stop self-isolating. Anyone coming into the UK and found to not be complying with the new testing requirements could face fines of up to £2,000.

Employers have a duty to take reasonable steps to facilitate employees taking COVID-19 tests, please see ‘What duty is there on employers to facilitate the testing of employees?’ for more information on this.

Workers who are fully vaccinated do not have to self-isolate and so can live on the farm or elsewhere.

For more information on what steps to take please see DEFRA’s guidance on Coming to the UK for seasonal agricultural work on English farms.

Seasonal workers who are not fully vaccinated

These workers will need to take a pre-departure Covid-19 test in the 3 days before they travel to the UK and they will also need to take a lateral flow device (LFD) test on days 2, 5 & 8 after their arrival. The arrangements for seasonal workers taking any LFD tests after arrival in the UK apply equally to those who are fully vaccinated and those who are not, please see above for more information about these tests.

Seasonal workers who are not fully vaccinated and arrive in the UK must go straight to the farm and somebody from the farm should collect them from the airport, port or station wherever possible.

When arriving at the farm, you should give them:

  • clear instructions about their working and living arrangements, and the COVID-19 related safety procedures in place
  • guidance on how to stay safe and help prevent the spread of COVID-19
  • information about testing, and how you will help them meet these requirements
  • information on what to do if they have symptoms

They can start work immediately but they must self-isolate on the farm for the first full 10 days and must live on the farm, unless they are exempt. They are allowed to mix with fellow workers but can only leave the farm for very limited purposes. There is guidance available for those who are self-isolating when they have travelled to the UK. If any of these workers develop symptoms of coronavirus or live with a person who has developed symptoms of coronavirus, they should follow the guidance on self-isolating.

For more information please see DEFRA’s guidance on Coming to the UK for seasonal agricultural work on English farms and for more detail on the health and safety steps you should take, please see 'COVID-secure' What you need to know.

If these workers wish to come out of self-isolation early and be allowed to leave the farm before the 10 days are complete, they can, where they are eligible to do so, pay to take part in the Test to Release Scheme. There is no statutory obligation on an employer to pay for or contribute towards these costs. In some cases, an employer may choose to pay for or make a contribution towards such costs, and where you are considering anything like this, it is important that you speak to one of our Specialist Advisers at CallFirst for more information before you take any further action. More detail on the scheme can be found in ‘Will any of my existing or new workers have to self-isolate when they arrive or return to the UK, or take a coronavirus test before or after they arrive?

The government is now carrying out public health self-isolation compliance checks on individuals who have a legal duty to self-isolate for 10 days following international travel. More information on what to expect from a compliance check is available online.

Seasonal poultry workers exemption:

The exemption for seasonal poultry workers that was in force towards the end of 2020 has been reinstated. Seasonal workers coming to England from 22 September 2021 to carry out specific activities in poultry processing on a named farm or processing site are exempt from the main quarantine rules upon arrival in England. Legislation has defined ‘specified poultry processing activities’ as:

  • catching poultry
  • slaughtering poultry
  • preparing and processing poultry meat
  • packing poultry meat.

More information on the exemption and associated requirements is available on the government’s list of jobs that qualify for travel exemptions.

Any other seasonal workers:

Currently there are no other applicable exemptions for other types of seasonal workers. Please see ‘Will any of my existing or new workers have to self-isolate when they arrive or return to the UK, or take a coronavirus test before or after they arrive?for more information on what testing and quarantine requirements there are for these workers.

The general position on quarantining and other measures necessary prior to travel:

As from 4th October 2021 the rules for international travel to England and Wales changed from the red, amber, green traffic light system to a single red list of countries and simplified travel measures for arrivals from the rest of the world. The rules for travel from countries and territories not on the red list will depend on a person’s vaccination status. For details on who qualifies as being fully vaccinated and how to prove vaccination status please see ‘check if you qualify as fully vaccinated in England’ and ‘proof of vaccination in England’ or the ‘definition of fully vaccinated in Wales’ and ‘showing your vaccination status in Wales’.

Travel to the UK from the ‘red list’ of countries is banned. Only British and Irish Nationals, or third country nationals with residence rights in the UK will be able to enter the UK if they have been in or travelled through any of the countries on the travel ban list in the previous 10 days. They must quarantine in a government-approved facility (unless exempt) for 10 days on arrival. They cannot use the Test to Release scheme. For more information on this please see Booking and staying in a quarantine hotel when you arrive in England and Border rules for people travelling to and from Wales: coronavirus (COVID-19). The list will be reviewed every 3 weeks or sooner if there is concerning evidence meaning that faster action is necessary. For people arriving from the rest of the world, they will need to quarantine (at home) for a period of up to 10 full days, unless they are on a shortlist of exemptions or they are fully vaccinated.

All quarantine periods for international arrivals start from the day the traveller arrives in the UK and lasts for the next 10 full consecutive days after the day they arrived. However, from 15 December 2020 the 10-day period may be reduced for passengers arriving into England who comply with the ‘Test to Release’ strategy. Please see further on within this section for more details.

All international arrivals are required to supply their contact and accommodation information by completing a passenger locator form before their arrival to any nation in the UK and this must be presented on arrival to the UK, unless they have an exemption. Anybody refusing to supply these details may be fined (and in England could also be imprisoned for up to 10 years), and non-British nationals may not be allowed into the UK. Where international travellers who are required to quarantine are unable to demonstrate where they would quarantine, they will be required to do so in accommodation arranged by the Government. Anybody refusing to comply with the quarantine requirements may be fined.

All journeys within the Common Travel Area will also be exempt from these measures. The measures and list of exemptions will be kept under regular review. It is possible to sign up for email alerts concerning any changes to the country lists or conditions attached to them applicable in England here.

The government is now carrying out public health self-isolation compliance checks on individuals who have a legal duty to self-isolate for 10 days following international travel. More information on what to expect from a compliance check is available online.

Coronavirus: testing for people travelling to England and Wales

Passengers (including British citizens) arriving by boat, plane or train from countries on the government’s red list countries or who are not fully vaccinated are required to present a negative COVID-19 test result before departing for England or Wales. The test must have been taken up to 72 hours prior to departure. Passengers will be subject to an immediate fine of £500 if they fail to comply with the new requirement. These passengers must quarantine for 10 days regardless of their pre-departure test result to provide further protection from those travelling from high-risk countries.

Passengers will need to find their own test provider and ensure it meets the required standard.

Test results must be in English, French or Spanish – translations will not be accepted and they can be in a printed document or as an email or text message.

More detail is available online for those travelling to England and for those travelling to Wales about what counts as a suitable test, where a passenger may be able to find information on where they can source a test and what data needs to be included with the test results.

Coronavirus tests after arrival in the UK

Any person arriving from outside the Common Travel Area and not covered by the list of exemptions must take a Covid-19 test on day 2 after their arrival. The test must be booked and paid for prior to travel. The travel test package booking reference number will be needed for the passenger locator form.

Failure to take the test may result in a penalty of up to £2,000. For people coming to England, there are a number of private providers offering atesting package, with different costs for the package. The government does not endorse or recommend any test provider. Individuals should conduct their own research about available providers, the tests they supply and their terms and conditions of sale. More details on providers of tests in England are available here and more details on how to quarantine in England are also available online.

For people arriving into Wales, information on the rules upon arrival is available here and the package tests can be booked via an online portal.

The testing requirements apply to all arrivals, including those with jobs that qualify for other travel exemptions, unless there is a specific exemption granted for testing to that particular job. Please always check the latest information on such jobs and their exemptions.

Travellers who are not fully vaccinated:

In addition to the day 2 test, travellers who are not fully vaccinated will also need to book and pay for a test on day 8. This will normally be offered as part of a complete package with the day 2 test.

A negative test on either day 2 or 8 will not bring the quarantine period to an early end, the 10 full days must be completed. If either test shows a positive result, the period of quarantine must continue for a further 10 days from the day the test was taken. Where an employer has workers who are quarantining, they have a duty to take reasonable steps to facilitate employees taking COVID-19 tests, please see ‘What duty is there on employers to facilitate the testing of employees?’ for more information on this.

If a person chooses to take part in the Test to Release Scheme (in England only) and is then eligible to end their self-isolation early, they must still have a COVID-19 test on day 8. If this has a positive result, they will need to self-isolate for 10 full days from when they took the test.

There is no statutory obligation on an employer to pay for any of these tests for any of their workers, whether they be foreign seasonal workers or existing members of staff returning home. In some cases, an employer may choose to pay for or make a contribution towards such costs, and where you are considering anything like this, it is important that you speak to one of our Employment Advisers at the Helpline for more information before you take any further action.

Test to Release

Passengers arriving into England who are not fully vaccinated, may be able to reduce mandatory quarantine, if they take an optional coronavirus (COVID-19) test at least five days after they have arrived in England. Quarantine will need to continue until the test results are obtained. If the test is negative, they will no longer need to continue quarantining until the end of the 10 day period.

If the test result is positive, they must continue to self-isolate for a further 10 full days. People in the same household or support bubble must also then self-isolate for 10 full days, unless they are exempt. The isolation period includes the date the test was taken or any symptoms started and the next 10 full days.

If test is inconclusive the passenger must continue to quarantine but they may choose to take another privately provided test.

If they should develop symptoms after a negative test, they must follow the usual guidance on self-isolation and seek out an NHS test and trace test as soon as possible, even if they have recently received a negative result from a private test. If the NHS test is positive they must continue to self-isolate for 10 full days. The isolation period includes the date the symptoms started and the next 10 full days.

Those who choose to opt into the scheme will have to book and pay for a test from a private provider on the GOV.UK list, they will not be eligible to use the NHS Test and Trace for this type of test, unless they have coronavirus symptoms. Tests provided by the NHS Test & Trace will not allow a passenger to shorten their isolation period. Passengers who have used the NHS Test and Trace because they have coronavirus symptoms, must continue to self-isolate if the result from an NHS Test & Trace test is negative. They may be fined if they use a negative NHS test result to try to end their quarantine period early, only a negative test that has been paid for under the Test to Release scheme can be used to end the quarantine period earlier than 10 days.

The private test will need to be booked before travel to England. Upon arrival in England passengers will still need to complete a passenger locator form where they can choose to opt into the scheme and self-isolate for 5 days before the test can be taken. If the test is not booked until after arrival in England, a new passenger locator form will need to be completed.

Passengers who choose not to take the optional test and have no other exemption applicable to them, will need to quarantine as usual for 10 days.

The scheme details can be found here. There is no Test to Release scheme operated in Wales.

Existing employees:

From 8 June 2020, employers will need to ensure that as well as any new starters, any existing employees returning from work or annual leave abroad comply with any applicable quarantine requirements. For the avoidance of doubt, they will not be covered by the seasonal workers exemption unless their employment fluctuates or is restricted due to the season or time of year and therefore unless they fall under one of the other exemptions listed. Those who are obliged to quarantine may however be eligible for the ‘Test to Release’ scheme (see above for more details). If they have travelled from or through a ‘red list’ country they will need to quarantine in a managed hotel for 10 full days.

Where employers know that employees are taking annual leave and are likely to be visiting a country where they may need to quarantine upon their return to the UK, they should discuss the quarantine requirements with the employee before they go away to ensure they understand the rules that apply on their return. It should be remembered that the countries on the lists may change at short notice and/or whilst the employee is away. Employers should agree how the employee's return will be managed. Consider working from home, unpaid or paid leave, or further annual leave to cover any self-isolation periods.

Guidance has been produced on self-isolating after returning to the UK to help employers and employees.

Pay:

There are no provisions in place for this period of quarantine to be paid and there is no entitlement to SSP. There is no obligation on employers to pay their employees quarantining in these circumstances, but they may choose to do so, or may agree that the employee can take annual leave to cover this time, where possible. Where the employee is having to quarantine due to a work related trip, it would be reasonable and advisable for an employer to give full pay for this period.

Normally when you take on new workers, you have to carry out in person document checks to ensure that they have the right to work in the UK as part of the recruitment process. Now due to the measures in place to deal with the virus this means this is not always possible. 

Following NFU and business lobbying, the government relaxed the rules for right to work checks during the COVID-19 pandemic to allow them to be carried out remotely. This move is welcome as it is a pragmatic solution to recruitment issues, whether this is for seasonal work or to fill more permanent positions.

It is important to note that this is a temporary process in place until 5 April 2022 (this is a further extension from the original end date announced as 16 May 2021).

The process that will now need to be followed as from 30 March 2020 until 5 April 2022 is to:   

  • Ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app 
  • Arrange a video call with the worker – ask them to hold up the original documents to the camera and check them against the digital copy of the documents 
  • Record the date you made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19” 
  • If the worker has a current Biometric Residence Permit or Biometric Residence Card or status under the EU Settlement Scheme you can use the online right to work checking service while doing a video call - the applicant must give you permission to view their details 
  • If the worker is unable to provide any documents you should use the Employer Checking Service

These steps are only a temporary measure and will not provide any statutory defence to illegally employing a worker. It is still an offence to knowingly employ somebody who does not have the right to work in the UK. When the temporary adjustments were first announced, provision was also made to require employers to carry out retrospective checks within an 8-week period after the end of the temporary measures, however the requirement to make retrospective checks has been lifted.  There is now no need to carry out retrospective checks on those who had a COVID-19 adjusted check between 30 March 2020 and 5 April 2022 (inclusive).

New guidance will be issued by the Home Office ahead of 6th April 2022 for what right to work checks are needed when the temporary adjustments come to an end.

More detail on right to work checks is available here: https://www.gov.uk/guidance/coronavirus-covid-19-right-to-work-checks.

Throughout the course of the pandemic there has at times been guidance from the government to businesses that office workers should work from home where this was possible. From 19 July 2021 this guidance no longer applies, however the government expects and recommends employers operate a gradual return to the workplace over the summer.

Many employers have allowed home working during the pandemic and will now allow it to continue either in its pure form or as part of a hybrid working arrangement.

The government have changed the terminology they have used previously and are now referring to ‘critical workers’ rather than ‘key workers’. The content of the guidance has not been changed but it is still crucial to refer to the list of critical workers the government has publicised . This includes those involved in food production, processing, distribution, sale and delivery as well as those essential to the provision of other key goods (for example hygienic and veterinary medicines) with farmers specifically mentioned in DfE advice for parents.

This announcement by government is only intended to address the problems that could have been caused if workers are unable to work due to closures of schools and nurseries rather than being unwell.

If within a family there is one parent who is a critical worker, the other parent would still be able to take emergency time off for dependants to make care arrangements and employers should still treat them as any other working parent, see - What if my employee can’t come to work because their child attends a school which has closed due to coronavirus? Employers should not expect working parents to make use of the school facilities available to critical workers.

The status of critical worker is also relevant in relation to exemptions from self-isolation, but this status alone will not be enough to qualify for the exemption. For more information on this please see What self-isolation exemptions are there?

Individuals should self-isolate immediately if they have:

  • Symptoms of coronavirus (a high temperature, a new, continuous cough or a loss or change to sense of smell or taste
  • Tested positive for coronavirus
  • Someone they live with (or are in a support bubble with) who has symptoms or has tested positive, unless they are exempt
  • Been told by Test and Trace, or Test, Trace and Protect that they have been in contact with someone who has tested positive and they are not exempt from self-isolation
  • Been advised by a doctor or healthcare professional to self-isolate before going into hospital for surgery.

The standard period of self-isolation is 10 full days. The self-isolation period includes the date the symptoms started (or date of the test if there are no symptoms) or the date of the last contact with the other person, and the next ten full days. Please refer to the latest NHS guidance on exactly how long a person must self-isolate for, including occasions where a person has symptoms for a further time.

It is a legal requirement for those who have tested positive or have been notified by NHS Test and Trace or Test, Trace and Protect to self-isolate. Fines for breaching this requirement start from £1,000 and can increase up to £10,000 for repeat offences and ‘the most egregious breaches’.

There is a legal duty upon those who are legally required to self-isolate to inform their employers of this with the start and expected end date of self-isolation. This information should be given as soon as reasonably practicable and, in any event, before they are next due to start work within the isolation period. A fixed penalty notice for £50 may be issued for any breach of this requirement. Employers who prevent or try to prevent others from self-isolating will also face the same level of fines. It is still reasonable to expect those who can, to work from home whilst self-isolating but employers must not ask, encourage or expect those who are required to self-isolate to come into the work place.

Statutory Sick Pay (SSP) regulations have been amended to include self-isolation because somebody has symptoms or is living in the same household or shares a support bubble with another person who has symptoms or where advised by NHS Test and Trace or Test, Trace, Protect to self-isolate to prevent the spread of coronavirus. Those who have been advised by a doctor or healthcare professional to self-isolate before going into hospital for surgery are also eligible.

In addition, where a person is entitled and eligible for SSP due to coronavirus, it should be paid from day 1 as the usual 3 waiting days requirement has been abolished for these types of cases. However, there must still be a period of incapacity for work, this is any period of four or more consecutive days, each of which is a 'day of incapacity for work'.

An employee can self-certify their own sickness for the first 7 days and some may do this where they believe they have the coronavirus or symptoms of it. The Government have “strongly suggested” employers to be more flexible and exercise discretion where an employee may not have a fit note, but “isolation notes” are now available from NHS 111 Online, NHS mobile phone app and the NHS website, so employers should be accepting these as suitable evidence. The NHS Test and Trace or Test, Trace, Protect service will provide a notification that can be used as evidence that someone has been told to self-isolate.

There is no legal obligation to pay full pay and it is clear that an employer need only pay SSP where an employee qualifies for it. Where possible it is good practice to consider paying full pay to prevent an employee from coming to work and risk spreading the virus to others. Employers will need to take special account of those employees who don’t qualify for SSP. In any case, however, where employers choose to pay anything more than what they are legally obliged to pay, it should be made clear how long the additional payments will last for and under what circumstances they will be paid, otherwise there is a risk that custom and practice will deem those additional payments to become a contractual right of the employee for the future. There are also measures in place to provide funding through state benefits such as Employment Support Allowance or Universal Credit to those employees who wouldn’t ordinarily qualify for SSP or other sick pay.  

If a fit note has been issued then you should follow your normal sick leave and sick pay policy as appropriate. The right to receive SSP from day one will also apply in these circumstances where an employee has been diagnosed with coronavirus.

Employers will need to ensure that all workers are included in their COVID-19 risk assessment and take action accordingly. For more details on this please see: Working safely during coronavirus: Advice on making your business 'COVID-secure'.

Risk assessments should already have been completed for women of child bearing age including biological risks, such as Coronavirus, to them and/or their unborn child. If a risk is identified as a result of Coronavirus then employers need to make adjustments to the workplace as outlined above. Where these options are not reasonable or possible then employers have a duty to suspend the woman on full pay. If this happens to be within the last four weeks before the baby is due and the reason for the absence is wholly or partly pregnancy related this will automatically trigger the start of her maternity leave. This is only the case where the absence is pregnancy related and would therefore not apply if there was not enough work for her to do. Specific guidance is available for pregnant employees.  

Shielding has been paused from 1 April 2021 in Wales and has now ended in England. The shielding program was originally brought in to protect people who are clinically extremely vulnerable by minimising all interaction between those who are extremely vulnerable and others. The Government at the time were “strongly advising people with serious underlying health conditions which put them at very high risk of severe illness from coronavirus (COVID-19) to rigorously follow shielding measures in order to keep themselves safe”. People falling into this clinically extremely vulnerable group include:

  1. Solid organ transplant recipients
  2. People with specific cancers:
    • people with cancer who are undergoing active chemotherapy or radical radiotherapy for lung cancer
    • people with cancers of the blood or bone marrow such as leukaemia, lymphoma or myeloma who are at any stage of treatment
    • people having immunotherapy or other continuing antibody treatments for cancer
    • people having other targeted cancer treatments which can affect the immune system, such as protein kinase inhibitors or PARP inhibitors
    • people who have had bone marrow or stem cell transplants in the last 6 months, or who are still taking immunosuppression drugs
  3. People with severe respiratory conditions including all cystic fibrosis, severe asthma and severe COPD.
  4. People with rare diseases and inborn errors of metabolism that significantly increase the risk of infections (such as SCID, homozygous sickle cell).
  5. People on immunosuppression therapies sufficient to significantly increase risk of infection.
  6. Women who are pregnant with significant heart disease, congenital or acquired.
  7. Adults with Down’s syndrome
  8. Adults on dialysis or with chronic kidney disease (stage 5)
  9. Other people have also been classed as clinically extremely vulnerable, based on clinical judgement and an assessment of their needs. GPs and hospital clinicians have been provided with guidance to support these decisions.
  1. Those who have been identified through the COVID-19 Population Risk Assessment as potentially being at high risk of serious illness if they catch the virus.

Since 19 July, the guidance for clinically extremely vulnerable people has been to follow the same advice as the rest of the population, but to think carefully about any other additional precautions people may wish to take. People are advised to manage their own conditions and take routine advice from their relevant health professionals, who know the needs of their individual patients best.

Those previously on the Shielded Patient List will have been sent a letter from the government in the to inform them of this decision.

The government will continue to assess the situation and the risks posed by Covid-19 and, based on clinical advice, will respond accordingly to keep the most vulnerable safe.

However, employers still have a legal responsibility to protect their employees and others from risks to their health and safety. You should be able to explain to your employees the measures you have in place to keep them safe at work. The Health and Safety Executive (HSE) has published guidance on protecting vulnerable workers, including advice for employers and employees on how to talk about reducing risks in the workplace.

More detail on shielding in England is available here: https://www.gov.uk/government/publications/guidance-on-shielding-and-protecting-extremely-vulnerable-persons-from-covid-19/guidance-on-shielding-and-protecting-extremely-vulnerable-persons-from-covid-19. The Welsh Government have guidance for protecting people defined on medical grounds as extremely vulnerable from coronavirus.

At the end of the shielding period, employers will need to discuss with affected employees what the best arrangements are, which could include:

  • working from home
  • return to the workplace where working from home is not possible, but only if the workplace is COVID-secure
  • unpaid leave
  • use of annual leave, although this is only a short-term solution.

England

On 11 May 2020 the government announced ‘COVID-19 secure’ guidelines for employers to follow to help them get their businesses back up and running and workplaces operating as safely as possible.

Employers are advised to look at the guidance which is specific to the nature of their business, and in some cases more than one set of guidance should be referred to where there is an overlap of the nature of the business. All versions of the guidance can be found here.

If you have any queries about making your workplace ‘COVID-19 secure’ please see our separate Q&A specifically dealing with these issues.

Wales

In Wales, the government have introduced a legal duty with regard to social distancing which will apply to any workplace, including homes, where work and repairs are being undertaken and outdoor spaces. The Welsh government have produced guidance for keeping ‘Wales safe at work’. Within each sector specific guidance there is a notice for employers to display in the workplace to show their employees, customers and other visitors in the workplace, that they have followed the guidance.  The regulations in Wales mean that all businesses will have to take all reasonable measures to minimise risk of exposure to the virus on the premises.

Businesses in Wales can see advice from the government, including sector specific guidance, here: https://gov.wales/business-and-employers-coronavirus

If you have any queries about making your workplace ‘COVID-19 secure’ please see our separate Q&A specifically dealing with these issues.

Where you are already using PPE, such as face masks, in your work activity to protect against non-COVID-19 risks, you should continue to do so.

Workplaces should not encourage the precautionary use of extra PPE to protect against COVID-19 outside clinical settings or when responding to a suspected or confirmed case of COVID-19.

An alternative to a face mask is a face covering. A face covering can be very simple and may be worn in enclosed spaces where social distancing isn’t possible, it is not a replacement for other ways of managing risk. It just needs to cover your mouth and nose. Face coverings are not the same as the PPE used to manage risks like dust and spray in an industrial context, or by health and care workers. Supplies of PPE, including face masks, must continue to be reserved for those who need them to protect against risks in their workplace.

The English and Welsh Governments have taken different approaches as to whether face coverings should be compulsory and in what circumstances.

England

From 19 July 2021, as part of Step 4 of the Roadmap, the legal requirement to wear a face covering will be lifted. However, the government expects and recommends that people wear face coverings in crowded areas such as public transport. Businesses will need to make their own decisions following risk assessments as to whether they will require their staff, customers or visitors to wear a face covering within the work place. If a business has such a requirement they must continue to take account of any reasonable excuses for not wearing a face covering such as disability or risk of causing severe distress.  

Wales

Face coverings are a legal requirement in Wales on public transport, in shops and other indoor public places and where 2m social distancing is not possible. Where a person has a reasonable excuse, such as a disability, a face covering need not be worn. Full details of what may amount to a reasonable excuse along with general information on face coverings for the public can be found here.  There may be occasions where employers require their staff to wear a face covering in a place which is not open to the public if social distancing can’t be maintained.  It is important that you support workers in using face coverings safely. This means telling workers:

  • wash your hands thoroughly with soap and water for 20 seconds or use hand sanitiser before putting a face covering on, and after removing it
  • when wearing a face covering, avoid touching your face or face covering, as you could contaminate them with germs from your hands
  • change your face covering if it becomes damp or if you’ve touched it
  • continue to wash your hands regularly
  • change and wash your face covering daily
  • if the material is washable, wash in line with manufacturer’s instructions. If it’s not washable, dispose of it carefully in your usual waste
  • practise social distancing wherever possible

Specific guidance on face coverings is available for employers and managers of premises here. As the Welsh Government prepares to publish an updated Coronavirus Control Plan, setting out what will happen beyond alert level one, face coverings will continue to be required in certain settings, such as public transport and taxis, and health and social care, as a minimum. Active further consideration is being given to whether face coverings should also be required in other settings, such as retail, if restrictions are relaxed further. More news on this is expected in due course.

If your employees are employed in a setting where it is compulsory, either by law or by the rules of the business for them to wear a face covering and they refuse to wear one or are caught not wearing one you should establish if they have any legitimate reason for not wearing the face covering.

If an employee unreasonably refuses to wear a compulsory face covering it may be possible to take disciplinary action. Employers must take a reasonable approach and ensure that they have made it explicitly clear in writing when and where face coverings must be worn and also warned what possible consequences an employee may face for any breaches of a reasonable health and safety instruction like this.  As with any other type of possible disciplinary matter the alleged breach should be properly investigated before taking any further action. If you are contemplating a dismissal it is important that you contact the HELPLINE for advice on this approach before taking any action.

The same duty of care is owed to these people but there is no statutory obligation to pay them if they are ill or are self-isolating, subject to the terms of any contract. In the Budget it was announced that those people not entitled to SSP including zero hours workers and the self employed would be entitled to receive Employment and Support Allowance (ESA), but this is something they would need to claim through Job Centre Plus or online from: https://www.gov.uk/employment-support-allowance/how-to-claim, you do not have to pay this to them.

There are also other measures which have been announced, if you wish to help any contractors with guidance you can refer them to the Government webpages for more information as and when it becomes available. 

Any employees covered by the Equality Act 2010 and classed as disabled will be entitled to the same duty of care applicable to all of your other employees, but there is also the additional requirement not to discriminate against these employees and to consider making reasonable adjustments. What is reasonable will depend on the circumstances but could include; working from home or sending an employee home who suffers with respiratory problems or has mental health issues and has increased anxiety levels due to their fear of coronavirus. Prioritising a disabled employee who is also classed as a vulnerable worker is likely to be a reasonable adjustment in many cases. Take advice from the Helpline on these sorts of queries.

You should discuss your concerns with the employee and consider what alternatives there may be such as working from home, annual leave or paid leave if you are willing to offer this.

Where there are no suitable alternatives and there is a legal requirement to self-isolate, such as when a person has been notified by NHS Test and Trace, or Test, Trace and Protect, or they are required to self-isolate because they have visited a country which is not on the travel corridor list then you must send them home. People who do not self-isolate, and employers who knowingly require or encourage someone in these circumstances to come to/stay at work can both be fined from £1000 up to £10,000.

As self-isolation in these cases is a legal requirement you should pay your employee SSP or company sick pay where they qualify for it.

If an employee is refusing to self-isolate in other cases contrary to government guidance, such as when they or someone else in their household or support bubble has symptoms but has not yet been tested, you should still encourage the employee to follow the NHS and Government guidance. Ultimately if they refuse to stay at home and you are satisfied that they should be self-isolating as per the guidance then you must send them home and tell them to stay there until their self-isolation period is completed. Depending on the circumstances this may have to be on full pay, please contact the HELPLINE for further advice in these circumstances. If you allow them to continue to work when they should be self-isolating as per the guidance, you could be fined for failing to ensure the workplace is COVID-secure.

In all cases you should encourage your employee to use and follow the advice on the NHS Online Coronavirus service: https://www.nhs.uk/conditions/coronavirus-covid-19/. The NHS 111 service should only be used where no support is available online.

Currently there is no guidance advising that you should automatically close the workplace where an employee has attended the workplace and is suspected or known to have the coronavirus. Employers are advised to follow cleaning guidance: https://www.gov.uk/government/collections/coronavirus-covid-19-list-of-guidance#guidance-for-non-clinical-settings and you should refer to our 'COVID-secure' - what you need to know’ Q&A for further guidance.

If you have an employee who is worried about catching the coronavirus from others in the workplace you should listen carefully to their concerns and try to reassure them with the steps you are taking to make and keep the workplace safe. ACAS have suggested where someone still does not want to go to the workplace, where possible flexible working should be considered or annual leave or unpaid leave may be agreed where this is available, but an employer does not have to agree to this. For more information please see separate ‘COVID-19 Secure – What you need to know’ Q&As.

If an employee unreasonably refuses to attend work and they are not displaying any symptoms or have not been advised to self-isolate, it may be possible to take disciplinary action. The underlying message from government guidance is for employers to adopt a reasonable approach and that workers should not be forced into an unsafe workplace. As such; invoking a disciplinary process should be a last resort and where all other options have been genuinely and fully considered. Where an employee is dismissed or suffers any detriment for any steps or action they have taken (such as a refusal to work) based on their genuine belief that doing so would have left them or put them in serious and imminent danger, the employee would be entitled to make an employment tribunal claim. There is no minimum length of service needed for such a claim. It is important that you contact the HELPLINE for advice on this before taking any action.

This would be covered by the emergency time off for dependents leave where employees can take a reasonable period of unpaid leave to deal with an emergency such as this. Employers should think about what longer term options are available for employees such as home working, flexible working, annual leave or authorised unpaid leave.

Revised guidance for the CJRS states employers may furlough employees who are unable to work because they have caring responsibilities and provides the example of employees looking after children. Please see our separate guide on furlough leave.

Please see our separate Q&A for queries you may have about bringing people back into the workplace after furlough or other periods of absence:

https://www.nfuemploymentservice.com/news/returning-to-work-after-furlough-and-other-periods-of-absence-qa/

If you have any queries about making your workplace ‘COVID-19 secure’ please see our Q&A specifically dealing with these issues:

https://www.nfuemploymentservice.com/news/covid-secure-what-you-need-to-know/.Employers are being advised to think about the long term so that they can ensure consistency with their approach to matters such as how might discretionary sick pay apply, will self-isolation absence be treated as sickness absence for the purpose of sickness records or trigger points. Speak to the HELPLINE for advice on how to handle these issues. Acas have produced guidance for employers on long COVID and whether it should be treated as disability.

NFU Employment Service members can speak to an adviser through our Helpline for advice on how to handle these issues.

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