| HR & EMPLOYMENT LAW
Jackie le Poidevin, Editor-in-Chief, HR Adviser |
Lateral Flow Tests: What You Should Do and How to Avoid the Pitfalls
Many small- and medium-sized businesses can now order lateral flow tests to help them identify employees who have Covid-19 without showing symptoms. This poses various HR issues around consent, storing the results and what to do if an employee tests positive.
Who is Eligible?
You can apply for the test kits if your business is registered in England, you employ 50 or more people and your employees can’t work from home. If you wish to order tests, you must register here by the end of March. The tests are free until that point and your application should be processed within 2 working days.
How Do the Tests Work?
Employees take a swab from their nose and throat using a device that resembles a pregnancy-testing kit. There’s a reading window which gives a result in 30 minutes.
How Often Should We Test?
The government’s guidance recommends offering at least two tests a week, including to any staff who have already been vaccinated.
Where Should Testing Take Place?
Staff can test themselves at home (e.g. first thing before they are due to come into work or the night before). However, you’ll need to provide detailed instructions or get them to do the first test at work to reduce the risk of inaccurate results.
If testing takes place at work, you’ll need a big enough space for staff to test themselves in private and to social distance beforehand and while they wait for the result.
What Happens if Someone Tests Positive?
The employee must tell you and return (or remain at) home to self-isolate. Lateral flow tests are less reliable than the ‘normal’ Covid tests, so they should arrange a PCR lab test. If this is negative, they can return to work unless they develop symptoms or NHS Test and Trace advises them to continue self-isolating.
If someone tests positive, you should contact the Self-Isolation Service Hub on 020 3743 6715 to provide details of their close workplace contacts. NHS Test and Trace may tell them to self-isolate.
Are there Any Legal Pitfalls?
Yes! These are the key issues to watch out for:
- You should get employees’ consent to be tested and to tell you if they test positive. In some settings, you might perhaps be able to argue that a requirement to be tested is a reasonable management instruction and dismiss someone who refuses for misconduct. However, it’s far better to consult with employees and encourage them to get tested by setting out the benefits. Explain that one in three people with Covid have no symptoms and may unknowingly be passing on the virus. Also, consider offering full pay to anyone who has to self-isolate, so fears about losing pay don’t deter people from getting tested.
- If staff are on the minimum wage and you test them in the workplace, you may need to pay them for the time spent doing the test and waiting for the result. You’ll need to do this if their pay for all their hours, including testing time, in that pay period would otherwise fall below the legal minimum.
- Information about employees’ health, including test results, is special category data under the GDPR. This means you should give information about the results to as few people as possible (e.g. the manager of an employee who tests positive and perhaps a designated person in HR or payroll). You must also store information about a positive result securely, keeping no more details than necessary and for no longer than necessary.
- To comply with the GDPR, you must not tell colleagues who has tested positive. You can ask them to be extra vigilant for possible symptoms, though, and increase the frequency of testing.
The Information Commissioner’s Office has released guidance about workplace testing which it’s important to follow to avoid a costly GDPR breach.
How to Meet the GDPR’s Transparency Requirements
To comply with the GDPR, you should give staff the following information in writing before you carry out any tests. Good communication will also increase uptake of testing:
- Why you’re carrying out the tests.
- What personal information you’re recording.
- What you’ll use the information for.
- What decisions you’ll make based on the person’s test results.
- Who you’ll share an individual’s test results with and why.
- How long you’ll keep the results for.
| PAYROLL
Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
Further Extension to CJRS Announced in the Budget
In presenting his 2021 Budget, the Chancellor, Rishi Sunak, announced a number of measures to provide ongoing support for those affected by the Covid-19 pandemic. These measures included a further extension to the Coronavirus Job Retention Scheme (CJRS).
Nature of the Scheme
Many employers are now familiar with the scheme, which was one of the first responses to the Covid-19 crisis. Under the scheme, employers can furlough or flexibly furlough employees and claim a grant from the Government for the 80% of the employee’s normal hours that the employee does not work, subject to a cap equivalent to £2,500. The employer must then use this money to pay the employee for their unworked hours. There is no requirement for the employer to top up the employee’s pay to their full pay, but they can do so if they wish.
The grant money is treated just like a payment of salary or wages, and is subject to PAYE and National Insurance (employer’s and employee’s) and pension contributions under auto-enrolment. Thus, while the employer does not have to pay the salary element, they must meet the cost of the associated employer National Insurance and employer pension contributions.
Latest Extension
The scheme has been subject to a number of extensions and revisions in its short life. Prior to the Budget announcement, the scheme was due to come to an end on 30 April 2021. However, it now will continue to run until 30 September 2021, with the level of support provided to employers being reduced gradually. However, employees will continue to receive 80% of their normal pay (subject to the cap) for their unworked hours.
Employer Contribution
Under the roadmap out of lockdown, the intention is for all Covid restrictions to be removed from 21 June 2021. Employers can continue to claim a grant for the full 80% of an employee’s unworked hours (up to the level of the cap) until 30 June 2021. However, from July onwards, once the restrictions are removed, the employer must start to meet part of the cost.
For July 2021, the employer must pay 10% of the employee’s normal wages for their unworked hours, claiming 70% from the Government under the scheme. For July and August, the employer must pay 20% of the employee’s wages for their unworked hours and can claim 60% from the Government as a grant under the CJRS.
The cost to the employer will depend on the employee’s normal pay and the number of unworked hours. For a fully furloughed employee entitled to the maximum grant of £2,500 a month, the employer must pay £312.50 of this for July (10/80 x £2,500) and £625 of this for August and September (20/80 x £2,500).
The employer must also pay employer’s National Insurance and associated employer pension contributions on the full amount paid to the employee.
Claims
Claims under the scheme must be made for a calendar month by the 14th of the following month (or the next working day where this falls on a weekend or a bank holiday).
| HEALTH & SAFETY
Paul Smith, Editor-in-Chief, Health & Safety Adviser |
‘Covid-Secure’: Where Does Vaccination Fit In?
Vaccination is proving a gamechanger, with Team UK leading the world in vaccine development, authorisation and roll-out. This week, researchers reported an 80% reduction in serious illness among the highest risk groups, with the Pfizer/BioNTech and Oxford Astra Zeneca vaccines both showing excellent results. Early data on transmission is also positive: it strongly suggests that those who have been vaccinated are not only less likely to become seriously ill themselves, but are also less likely to infect others. So, what is the employer’s role in this, and should we insist workers are vaccinated?
So far, the Government has stayed neutral, taking the line that worker vaccination is a contractual matter between employers and employees. Government speakers have several times stepped back from any hint of compulsion, using phrases such as ‘that’s not how we do things in the UK’. There is also a practical problem: an employer can only insist on employees doing something if it lies within the employee’s power: as things stand, though, none of us can go and buy a vaccine, all we can do is accept it (if offered) or not, as the case may be.
Work with Biological Agents: Existing Guidelines
In some sectors, notably work with biological agents such as bacteria and viruses, precedents already exist.
For example, the HSE’s guidance to those who manage pathology and similar clinical laboratories says ‘Employers need to ensure that occupational health arrangements include agreed immunisation procedures for all laboratory staff’. It goes on to say that the need for vaccination should be ‘determined as part of risk assessment, but should include protection against Hepatitis B, tetanus and tuberculosis’ and that ‘staff should be immunised as soon as possible after they are appointed and ideally before they start work’. It warns that it is illegal for employers to charge employees for vaccines.
However, these are very specific examples of where biological agents are a known workplace hazard that is under the employer’s control. When the hazard is a virus that’s circulating globally as a result of a pandemic, it would be a very big leap to apply this specific guidance to every employee in every workplace.
Latest IOSH Recommendations
Further light on the topic is shed by a Position Paper published this week by the Institution of Occupational Safety and Health (IOSH) – the lead UK professional body for health and safety advisers and consultants. Its key recommendations are:
- For biological agents generally, adopt a prevention-first
- Base control measures on your risk assessment.
- Depending on the assessment outcome, your control measures may include the provision of vaccinations, where they are readily available.
- You should tell employees about the hazards, risks and control measures and get medical advice on any concerns.
- This approach is also valid for Covid-19.
- Any employee, however, has the right to refuse a vaccine. In this case, you should review your risk assessment to determine whether other control measures are needed.
IOSH also recommends employers provide information about vaccination (the process and the benefits) based on current Government advice. However, as immunisation is only one form of control, other workplace safeguards must stay in place and be monitored, and employees kept fully informed. We agree.
‘But I’ve Been Vaccinated…’
Vaccination is already triggering calls to our Ask the Experts Helpdesk, for example: ‘I’ve been vaccinated, so why do I still need to self-isolate?’ Here, the official guidelines have not been relaxed in any respect, despite the growing number of people who have received at least one jab. The results so far are excellent, but the fact remains: no vaccine gives 100% protection. The guidelines may change in the future; however, for now, do encourage employees to stick to the rules as they are, and to maintain other aspects of ‘Covid-Secure’ such as hand hygiene, social distancing and working at home.