New regulations reveal legal obligation to self-isolate, prohibits employers from forcing employees into work

legislation

Monday 28 September provided an excellent example of how fast the pace of legislative change is moving in the age of COVID-19. The Health Protection (Coronavirus, Restrictions) (Self- Isolation) (England) Regulations 2020 (‘the Regulations’) were made at 5pm on 27 September, laid before Parliament on 28 September and came in to force on the same day.

The Regulations create obligations on workers to notify their employers if they’re required to self-isolate. They also prohibit employers from allowing a self-isolating worker to attend any place in connection with their work.

The Regulations will only apply in England.

How do the Regulations affect employers and employees?

Regulation 7 states that where an employer of a self-isolating worker is aware of their requirement to self-isolate, it’s an offence for them to allow the worker to attend any place (except the place where they are required to self-isolate) for any purpose connected to their employment. For the purposes of the Regulations, this includes household self-isolation, symptomatic self-isolation and self-isolation required by Test and Trace.

Regulation 8 says that where a self-isolating worker is:

  1. aware of the requirement to self-isolate, and
  2. due to work or undertake any other activities related to the worker’s employment during the isolation period

they must notify their employer of the requirement to self-isolate and the start and end dates of the isolation period.

They must notify their employer:

  1. as soon as reasonably practicable, and
  2. in any event, before the worker is next due to start work within the isolation period.

The Regulations extend this obligation to agency workers who must inform either their employer, the agency, or the principal. The Regulations require whoever receives this notification from the agency worker, to pass it on to the other parties.

Enforcement of the new regulations

The Regulations also set out enforcement provisions. Fixed penalty notices can be issued for breach of the obligations as follows:

  • First offence -£1000
  • Second offence – £2000
  • Third offence – £4000
  • Fourth offence (and any subsequent offence) £10,000

The fixed penalty fine for a breach of the worker’s obligation to notify their employer is £50 but the Regulations also create an offence where individuals have failed to follow self-isolation requirements which would treated as a separate offence.

In the case of agency workers, where a party has received a notification and does not pass it on to other parties, the penalty is £1000.

In a further move to reinforce compliance with self-isolation requirements, employees on lower incomes who cannot work from home will now be eligible for a new £500 Test and Trace Support payment (also currently only applicable in England).

They can claim this from local authorities and the government expects the scheme to be up and running by 12 October. People required to self-isolate from 28 September will be able to receive a back-dated payment when the scheme is up and running.

The criteria for the self-isolation payment is:

  • The worker has been instructed to self-isolate by NHS Test and Trace, either because they’ve tested positive or are the close contact of a positive case
  • They are employed or self-employed
  • They are unable to work from home and will lose income as a result
  • They are currently receiving Universal Credit, Working Tax Credit, income-based Employment and Support Allowance, income-based Jobseeker’s Allowance, Income Support, Housing Benefit and/or Pension Credit

The payment does not affect their entitlement to Statutory Sick Pay.

 

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