Employer and Worker Liabilities: Legal Duty to Self-Isolate

October 5, 2020

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.

Self-isolation periods

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.