Employers guide to the NHS test and trace app

Many people in England and Wales have the NHS COVID app on their phones. You can use this to check into a venue, check your symptoms and keep track of your test results. There's also an option to turn on digital contact tracing. If you're using the app and spend enough time close to another person with it, you will receive a "ping" alert if they test positive for COVID-19. At present, you would need to be two metres from them for 15 minutes.

There's been a huge surge in the number of people testing positive for COVID-19 over the last couple of weeks. It's therefore unsurprising that the number of people who have been "pinged" has also increased. In the last week of June, 360,000 were sent to people in England and Wales - a rise of more than 60% and the highest weekly figure of 2021.

This has been hugely disruptive for many businesses - particularly those in the hospitality, care and medical sectors. And they are worried that it will get significantly worse once the remaining restrictions are lifted in England on Monday 19 July, particularly as the softening of rules for people who have been double vaccinated don't come into force for another month.

Do our staff have to self-isolate if they're told to do so via the app?

There's a lot of confusion about this. Anyone who is "pinged" is advised to self-isolate for 10 days but they're not legally obliged to do so.

The NHS website still says that if you're told to self-isolate by NHS Test and Trace or the NHS COVID-19 app you should:

• self isolate immediately
• do not leave your home for any reason
• don't have visitors in your house
• try to avoid contact with people you live with

But, the Health Protection (Coronavirus Restrictions) (Self Isolation) England Regulations 2020 which underpin the legal duty to self-isolate specifically exclude notifications via the App.

Do our staff have to tell us if they've been "pinged"?

The notifications are private and you won't know if a member of staff has been advised to self-isolate via the app unless they tell you.

But, that's not necessarily the end of the matter. You have a duty to assess the risks presented by your workplace to your own employees, as well as those people they come into contact with. Your staff also have to take reasonable care of their own health and that of others in the workplace. This means that they must comply with the procedures you have put in place to protect them.

In that context, you'll have to decide whether you can leave it up to staff to judge whether or not they need to self-isolate, or if you need to put in place clear rules. To some extent, that will depend on the nature of your business.  Most employers are choosing to set out their expectations in a policy and are asking anyone who is '"pinged" to notify them unless they already work from home. 

The guidance on NHS Test and Trace in the workplace is clear. It says:

'If a worker has received a notification to self-isolate via the NHS COVID-19 app, they should not attend the workplace as the individual may be infectious and could spread the virus.'    

But, the government has been undermining this message over recent days. For example, Lord Grimstone, investment minister, told one large employer that app was only an ‘advisory tool’ and that people were not under any ‘legal duty’ to follow it. And another minister has said 'the app is there to allow you to make informed decisions... obviously it's up to individuals and employers.' The government has, however, said that the guidance should be followed. Despite that some employers have publicly announced that they are allowing staff to work even if they have been "pinged" because they are satisfied that their working environments are COVID-secure.

You will need to consider, in advance, how you are going to approach these sorts of notifications. From a health and safety perspective, the starting point is to consider whether the employee can work from home. If they can, they should do so for the complete isolation period. However, if that's not possible you can consider other alternatives such as assigning the employee temporary duties that don't involve face to face contact with others, asking them to take daily lateral flow tests from home and only coming into work if they are negative or wearing additional PPE. 

You will need to be particularly careful if the employee in question comes into close contact with others, particularly those who are vulnerable because of their age or health. Can they be isolated from other people in the workplace? Can they wear a face mask to minimise the risk of infection? You will also have to think about whether you tell other members of staff that their colleague has been "pinged" (you'll need the employee's permission) and decide how you will deal with any concerns they may have working alongside someone who, potentially, could have the virus.

If the employee can not work from home, and it's not safe to allow them to return to work, you will have to ask them to remain at home for the full 10 days. 

Please note: some professionals, such as medical and care staff may have to follow standards set by their professional regulators and which require them to self-isolate in these circumstances.

* Since the original article was published, the government has said that frontline health and care staff can work rather than self-isolate provided they have been double-vaccinated, have a received a negative PCR test and take daily negative LFD antigen tests. The government is also due to publish further guidance about which businesses can ask workers to leave isolation if they are fully inoculated to prevent staff shortages.

Do we have to pay someone who is self-isolating because they have received a close contact "ping"?

Employees who have been officially asked to self-isolate by the NHS Test and Trace service or a local authority contact tracing team because they have been in close contact with someone who has tested positive for COVID-19 are entitled to SSP (provided they meet the usual qualifying criteria). Anyone who develops symptoms or lives in the same household as someone who has COVID-19 is also entitled to SSP.

Our understanding is that employees aren't entitled to SSP merely because they have received an automated alert from the NHS COVID-19 app. However, it's not entirely clear. The relevant SSP regulations say that is SSP payable if someone receives a 'relevant notification' by an official body 'engaged by a government department in communicable disease surveillance'. Does an app which is automatically generated meet that description? We are making further enquiries and will update this post to confirm the position as soon as we can.

Some workers may be entitled to a payment of £500 under the Test and Trace Support Payment scheme if they're asked to self-isolate by NHS Test and Trace, including by the NHS COVID-19 app. Eligibility for the payment is decided by the worker's local authority and is based on certain eligibility criteria. It's limited to people who have a low income, are unable to work from home and will lose income as a result of self-isolating.

You may have to pay staff if you've asked them to self-isolate once they've been 'pinged' and they can't work from home. Take advice if you're not sure. 

Can we ask our staff to turn off the app when they are at work?

That's not a good idea. Even if your workplace has a policy which either limits how much time your staff can spend on their own phone during working hours or prohibits them from carrying it around with them, you can't tell them what they can or can't download. 

That's probably true even if the phone belongs to you and it's being used for work purposes unless your policy also restricts which apps (or the type of apps) staff can download without permission. 

The wider point is that if you try and dissuade staff from turning on the contact tracing app, they may take the view that you're not interested in protecting their health or safety and this could undermine any efforts you've made to persuade people that it's safe for them to return to your workplace. It could also damage your reputation.

Will the app be adjusted to make it less sensitive?

The government has said that it may make changes to the app once most legal restrictions are lifted on Monday 19 July. 

However, it has now ruled this out.

What about people who have been double vaccinated. Do they still have to self-isolate if they receive a close contact "ping"?

Everyone who is "pinged" via the app is advised to self isolate for 10 days even if they have been double vaccinated.

However, from Monday 16 August, fully vaccinated people won't have to self-isolate if they are contacted by NHS Test and Trace as a close contact of someone who has been infected and presumably, won't be advised to do so if they are pinged either.

This article was updated on 20 July 2021 and again on 22 July 2021.

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