| HR & EMPLOYMENT LAW
Jackie le Poidevin, Editor-in-Chief, HR Adviser |
Understand the Latest Advice on Lateral Flow Testing
All but the smallest businesses can now order Covid tests for employees to collect from their workplace and use at home twice a week. Here, we look at this development along with recently updated Acas guidance on testing staff for the virus.
From ‘early April’, the Government has said you can order free lateral flow tests for your staff if:
- They can’t work from home.
- You have 10 or more employees.
- You can’t provide workplace testing.
To obtain the tests, you must register no later than 12 April. If your business is closed or you can’t provide tests now, the Government says you should still register so you can order tests in the future. Tests will remain free until 30 June.
If you have the space, you can still carry out testing in the workplace. The results are likely to be more accurate than home testing, although there’s more time and administrative effort required.
As the next stage in its programme, the Government is planning to allow employees in businesses with fewer than 10 people to order tests online to be sent to their home.
In another development, the law was amended on 29 March to deal with follow-up tests. Unless an employee has taken a lateral flow test under a trained operator’s supervision, they must take a more reliable PCR test if the result is positive. Under the updated legislation, the requirement to self-isolate ends immediately if the second test is negative and they can return to work.
Tip: If staff on the national minimum wage will be testing themselves at home, it would be safest to pay them for the time they spend taking the test and recording the result. This may count as working time, in which case failing to pay them (even if it’s only for 10 minutes) would take their wages below the legal minimum.
Updated Acas Guidance
Acas has recently updated its online guidance on coronavirus testing. This says there’s no law that you must test staff for Covid-19 and ‘in most situations it’s not necessary’. However, my own advice would be that if the Government is giving away free test kits, you should seriously consider taking it up on its offer. Otherwise, staff might argue you’re not doing all you can to protect them.
As lockdown restrictions ease, there’s a risk that staff or their families won’t stick to the rule of six or social distancing when meeting friends outside work. Testing’s not perfect, especially if done at home, and the Government’s advice is that it should be voluntary, which means some staff may remain untested. However, the more employees who agree to take tests, the greater your chances of preventing a workplace Covid outbreak.
That said, getting repeated negative results may lead to staff becoming complacent. You should therefore remind employees that testing is not a substitute for following either your Covid-secure guidelines or ‘hands, face, space’ advice outside work.
If you do offer testing, these are the key steps Acas says you should take:
- Consult Staff
You should discuss the following points with staff, a recognised trade union or other employee representatives:
- How testing would be carried out.
- How staff would get their results.
- What the process would be if someone tests positive.
- What pay employees would receive if they need to self-isolate but can’t do alternative duties from home.
- How you would record someone’s absence while self-isolating.
- How you would use, store and delete test results to comply with data protection law.
If you go ahead with testing, you should create a written policy.
- Consider Changing Your Absence Rules
Staff may not want to get tested because they’re worried that if they test positive they will get paid less for being off work. To allay such concerns, Acas says you could consider:
- Giving self-isolating staff full pay instead of sick pay.
- Putting them on furlough instead of sick pay.
- Not counting the time off in their absence record or as part of any ‘trigger’ system.
Tip: Despite what Acas says, my advice is that you should tread carefully before furloughing an employee instead of paying them sick pay. The furlough scheme doesn’t permit you to furlough someone just because they are self-isolating, so this risks an HMRC penalty. Possibly, though, if you have to send someone home and you have a furlough rotation scheme in place, they might swap shifts with a colleague who comes off furlough to cover for them.
- Try to Reach a Mutually Agreeable Solution
If someone withholds consent for testing, you should listen to their concerns and try to find a way forward. It can help to discuss:
- Why the employee doesn’t want to get tested.
- What might help resolve the issue.
- Any alternatives to testing, such as putting the employee on duties they can do from home.
- Protect Personal Data
You must follow the GDPR when carrying out testing. The Information Commissioner’s Office has released guidance on this.
| PAYROLL
Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
Coronavirus Easement for Cycle-to-work Schemes
To encourage employees to keep fit by cycling to work, the tax legislation contains an exemption which prevents a benefit-in-kind charge from arising where employers lend employees bicycles or cyclists’ safety equipment. Like most exemptions, the exemption is conditional on certain conditions being met.
The impact of the Coronavirus pandemic has meant that many employees are working from home and, as such, are not cycling to work. Earlier in the year, the Government announced a limited relaxation in the conditions that need to be met for the exemption to apply. Legislation to give statutory effect to the relaxation is included in the Finance (No. 2) Bill 2019-21. The relaxation means that employees will not suffer a tax charge if they are unable to comply with the terms of the exemption because they are working from home due to Coronavirus.
Nature of the Exemption
No charge to income tax arises where an employer lends an employee a cycle or cyclist safety equipment as long as the following conditions are met:
- The option to benefit from the loan of a cycle or equipment is available to all employees.
- The cycle or equipment must be used mainly for qualifying journeys.
A qualifying journey is a journey between home and work.
Where the conditions are met, the exemption extends to both the provision of the cycle and associated safety equipment. Cyclists’ safety equipment includes items such as helmets, bells, horns, lights, child safety seats, reflective clothing, white front reflectors and spoke reflectors. However, the provision of a cycle computer, clothing that is not reflective or cycle training fall outside the scope of the exemption.
Salary Sacrifice Arrangement
Cycles are often made available to employees under a salary sacrifice arrangement as part of a cycle-to-work scheme under which the employee gives up some of their cash salary in order to hire a cycle to cycle to work. As long as the conditions for the exemption are met, no tax charge will arise where cycles are made available via a salary sacrifice arrangement – the alternative valuation rules do not apply to the provision of cycles and cyclists’ safety equipment.
Impact of Covid-19 on Main Use Test
Working practices have changed as a result of the Covid-19 pandemic, and many employees are working wholly and mainly from home and have been doing so since March 2020. Consequently, where an employee is no longer cycling to work, it is not possible for them to meet the main use test, which requires the cycle to be used mainly for qualifying journeys for the exemption to apply.
To prevent a tax charge arising due to events beyond the employee’s control, employees who were provided with a cycle and/or cyclists’ safety equipment on or before 20 December 2020 are treated as meeting the main use test between 16 March 2020 and 5 April 2022, regardless of whether this test is actually met in practice. Consequently, they continue to benefit from the exemption and the provision of the cycle or equipment does not need to be reported to HMRC on their P11D.
However, this easement does not apply where an employee is provided with the use of a cycle on or after 21 December 2020. Where this is a case, a tax charge will arise if the main use test is not met, even if the employee is required to work at home after being provided with the cycle as a result of Covid-19.
| HEALTH & SAFETY
Paul Smith, Editor-in-Chief, Health & Safety Adviser |
Latest Test and Trace Advice for Employers
Whether you’ve been operating throughout lockdown or are now just preparing to re-open, it’s important to understand what action you should take to support NHS Test and Trace in their work of following up actual and possible cases. The official guidelines, first published in May last year, have been updated more than 10 times and now include a new requirement for some venues to record all clients/visitors, not just ‘one per group’. We summarise the key action points.
As a reminder, NHS Test and Trace:
- Provides free testing for anyone with coronavirus symptoms.
- Contacts anyone who has had a positive test result to help them share information about their close contacts.
- Alerts those contacts and directs them to self-isolate.
The App
The NHS COVID-19 app is an important part of NHS Test and Trace. App users can check symptoms, order a test, receive results and check in to venues. The app sends anonymous alerts if the user has been in close contact with another user who has tested positive and will notify them that they should self-isolate, thereby helping break transmission chains and keep people safe. It also allows quick access to all the latest guidelines and gives users a rapid reference to the Covid restrictions specific to their area.
Actions
To minimise virus transmission, the Government is calling on all employers to:
- Enable staff to work from home wherever possible.
- Make their workplace Covid-Secure.
- Not knowingly allow workers who should be self-isolating to come into the workplace. People should still follow the self-isolation rules even if they have received one or more doses of a Covid vaccine.
- Encourage employees to download and use the app.
- Contact the Self-Isolation Service Hub on 020 3743 6715 as soon as they become aware that any worker has tested positive. You will need to know the person’s 8-digit NHS Test and Trace Account ID (CTAS number) and be ready to provide details of that person’s close contacts at work.
In your approach, consider everyone present in the workplace: this includes not only employees but also agency workers, contractors, volunteers, customers, suppliers and visitors.
Collecting Contact Details for NHS Test and Trace
Certain organisations are legally required to request contact details for customers, visitors and staff and display an official NHS QR code poster. These include:
- Hospitality sector, including pubs, bars, restaurants and cafes.
- Tourism and leisure sector, including hotels, museums, cinemas and amusement arcades.
- Close contact services, such as hairdressers, barbershops and tailors.
- Services provided for social, cultural and recreational purposes in community centres and village halls.
In these sectors, you must record who’s on your site. Under the latest guidance, everyone should be asked for their contact details, not just a lead member of the group. Using the app is the quickest and easiest way, but you must also have a ‘manual’ check in system for anyone who doesn’t have it.
If you are in an affected sector, you must:
- Ask every customer or visitor (over the age of 16) to provide their name and contact details.
- Keep a record of all staff working on the premises, along with their shift times on each day, and their contact details.
- Keep these records for 21 days, and provide data to NHS Test and Trace if requested.
- Display an official NHS QR code poster so that people can check in with the app.
- Follow the General Data Protection Regulations (GDPR) by keeping your records confidential.
Workplace canteens that are open only to staff at that workplace are not required to collect their details.
Advice for Workers on Using the App
People who have downloaded the app should set contact tracing to ‘on’ while at work except where they:
- Work behind a fixed plastic screen and are fully protected from other people.
- Keep their phone in a locker or communal area while working.
- Work in health and social care and wear medical grade PPE such as a surgical mask.
- Work in a healthcare building such as a hospital or GP surgery.
They should not attend work if the app tells them to self-isolate.