Real life COVID queries - Staff member's family all tested positive
LUKE HUTCHINGS >
Employment Law PartnerTue 1 March 2022
Plan B rules have ceased applying in England.However, we know that employers are finding it tough to keep abreast of the ever-changing rules about working from home, self-isolation, and employee claims for statutory sick pay (SSP).
A client of the firm recently called in seeking some advice about an employee who worked with others in a warehouse setting. This particular employee lived in a house where all his other family members had caught COVID – though the employee in question did not.
The employee wanted to keep attending work because they did not want to see a drop in salary. The employer was worried that if this employee did attend, he could possibly spread COVID to other members of the same team. The employer wondered whether they could require the employee to isolate or take annual leave to mitigate the risk of his bringing COVID into the workplace. As we have said, the employee worked in a warehouse and therefore he could not perform his role from home.
Further questioning revealed that this employee had received both COVID jabs (and possibly the booster) and continued to show no symptoms and test negative for COVID even though every other member of the household was testing positive on lateral flow tests and PCR tests for some days. He appeared to have a very interesting level of immunity which meant he was surprisingly not developing COVID even though everyone else in his household had!
In respect of the employer’s question about attending work, the common sense answer turned out to be the correct one – which is not always what happens in the field of employment law.
Working it through from first principles we start from the fact that the employee was testing negative and was showing no symptoms. Whilst in theory there was a chance they could have the virus, it was much more likely that the employee did not have the virus. In terms of the need to isolate (or not) since 16 August 2021 when the guidance changed, someone in close contact with a person who has COVID, does not need to self-isolate when they are double-jabbed, as was the case here.
The employee wanted to come to work – they did not want to stay at home although they understood the employer’s nervousness about them coming back, ultimately, they had a right to attend work and be paid for it.
My client was a little nervous. They felt it is risky (it is), given the nature of the job is that it takes place in an enclosed space with other employees. Solutions that the employer could offer:
- paid leave to keep them away from work for a few days (with an agreement the employee self-tests every day),
- or for the employer to give notice to the staff member to take a “forced” holiday under regulation 15(3) of the Working Time Regulations 1998.
Please contact Luke Hutchings by clicking the ‘contact us’ button to contact him directly through email or call Luke at our Peterborough office on 01733 865636. Click here to read more about our Employment Services.
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