A couple of weeks ago, the government introduced new legal rules which meant that anyone who had come into close contact with someone who had, or was suspected of having, the Omicron variant, had to self-isolate for 10 days even if they had been double vaccinated.

Those rules have now been revoked and we go back to the previous rules which exempted those people who have been fully vaccinated from having to self-isolate provided they had no COVID-19 symptoms. You can read our analysis of the previous rules here.

However, the government has updated its guidance. It recommends that double-vaccinated people in England who are contacted by NHS test and trace should take a lateral flow test every day for the required period (which is either seven or 10 days and depends when contact took place) and only need to self-isolate if they test positive.

These exclusions also apply to people who are medically exempt from being vaccinated, or who have taken part in an approved COVID-19 vaccine trial. Anyone aged under 18 years and six months also doesn't have to self-isolate.  

However, unvaccinated adults aren’t eligible for this new daily testing policy, and must self-isolate for 10 days if they are a contact of someone who tests positive for COVID-19, regardless of the variant.

Implications for employers

Legally, you aren't under a positive duty to check your staff are exempt from the rules to self-isolate if they are a close contact of someone who has tested positive as the duty to self-isolate rests with the individual. But you do commit an offence if you knowingly allow someone who ought to be self-isolating to attend work. Individual company directors and managers also commit an offence if the employer’s breach is found to have been committed with their consent or connivance or through their negligence.

We, therefore, recommend that you clearly communicate how you expect your staff to behave once they have been identified as a close contact of someone with the virus.  

Explain the new rules to your staff and your expectation that if they come into work after receiving a notice to self-isolate, they are confirming that they are legally exempt from the duty to self-isolate and have taken a lateral flow test each day they are in work for the required period and each test is negative. Make it clear to them that if they do come into work when they should be self-isolating, you will treat it as a serious disciplinary offence, which may result in their dismissal.

Currently there's a huge shortage of lateral flow tests and unless your staff have already have a supply to hand, they may not be able to test themselves and will have to remain at home. However, they can't return to work within the self-isolation period even if they have a negative PCR test.  

Anyone who is self-isolating who isn't able to work from home may be entitled to SSP if they meet the qualifying rules.  

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