Jo Moseley is a Professional Support Lawyer at Irwin Mitchell

@JoMoseley1 from @irwinmitchell shares some legal advice for schools and colleges to help deal with Covid outbreaks or handling staff and pupils showing coronavirus symptoms.

The autumn term has only just started and, already, schools and colleges are sending pupils and staff home because they have a cough or other coronavirus symptoms. 

We answer some of the questions our educational clients have asked about this.

  1. What are the 'rules' on self isolation?

The general rules are set out here. You must self-isolate immediately if:

  • you have any symptoms of coronavirus (a high temperature, a new, continuous cough or a loss or change to your sense of smell or taste)
  • you've tested positive for coronavirus 
  • you live with someone who has symptoms or has tested positive
  • someone in your 'support bubble' has symptoms or has tested positive
  • you're told to self-isolate by NHS Test and Trace
  • you arrive in the UK from a country with a high coronavirus risk 

If you have symptoms or have tested positive for coronavirus, you'll usually need to self-isolate for at least 10 days.

  1. Are there special rules that apply to schools and colleges?

The general rules apply to educational establishments. However, the government has set out additional information in its Guidance for full opening: schools and Further education (FE) autumn term guidance - both of which were updated on 7 September 2020. 

These guidance notes say that if someone is suspected of having coronavirus or tests positive for it, the school or college must:

  • engage with the NHS Test and Trace process
  • manage confirmed cases amongst the school or college community; and
  • contain any outbreak by following local health protection team advice
  1. Do staff have to self isolate if they have been in close contact with a pupil or other staff member who is suspected of having coronavirus?

No. The guidance says that any member of staff who has helped someone with symptoms doesn't have to self isolate unless they either develop symptoms themselves or they are asked to self isolate by the NHS Test and Trace service because the pupil or other staff member has tested positive.

  1. How long should a member of staff self isolate if they develop symptoms?

Anyone who develops symptoms should be sent home and arrange to be tested. If they test positive, they must remain at home for at least 10 days - longer if their symptoms persist.

If the test is negative, your employee can return to work provided:

  • everyone they live with or who is in their support bubble who has symptoms tests negative
  • they are not told to self-isolate for 14 days by NHS Test and Trace; and 
  • they feel well 
  1. Do we have to notify Public Health England if a member of staff or pupil tests positive for coronavirus?

You must take 'swift action' if you become aware that someone in your school or college has tested positive for coronavirus. This means you should contact the local health protection team (unless they have already contacted you). 

The health protection team will carry out a rapid risk assessment to confirm who has been in close contact with the person during the period that they were infectious, and ask them to self-isolate. They will also explain the specific steps you need to take. 

You must send home anyone who has been in close contact with the person who has tested positive and advise them to self isolate for 14 days. Close contact means:

  • direct close contacts - face to face contact with an infected individual for any length of time, within 1 metre, including being coughed on, a face to face conversation, or unprotected physical contact (skin-to-skin)
  • proximity contacts - extended close contact (within 1 to 2 metres for more than 15 minutes) with an infected individual
  • travelling in a small vehicle, like a car, with an infected person
  1. Are there any special rules we need to follow if more than one person tests positive within 14 days? 

If you have two or more confirmed cases within 14 days, or an overall rise in sickness absence where coronavirus is suspected, you may have to take additional measures. 

In some cases, health protection teams may recommend that a larger number of pupils/students self-isolate at home as a precautionary measure – including the whole site or year group. The severity of the steps you have to take will depend on the systems of control you have put in place to maintain social distancing and, the numbers of people who have tested positive. 

If you have an outbreak, a mobile testing unit may be dispatched to test others who may have been in contact with the person who has tested positive. 

  1. Can we ask staff to work from home if they have to self isolate?

Yes, provided they are well enough to work. If there is no work they can do at home, you may not have to pay them their full salary - but they will be entitled to SSP. We recommend that you take specific advice on this, particularly if staff are engaged under Green Book or Burgundy Book terms.

  1. Many of our staff have their own school aged children. What happens if their child is told to self isolate?

If their child is told to self isolate because they have symptoms their parents (and any other children or adults in the same house) will have to follow the stay at home guidance which says:

"If you have symptoms of COVID-19 however mild, self-isolate for at least 10 days from when your symptoms started ... and arrange to have a test"

 "After 10 days, if you still have a temperature you should continue to self-isolate and seek medical advice. You do not need to self-isolate after 10 days if you only have a cough or loss of sense of smell or taste, as these symptoms can last for several weeks after the infection has gone."

"If you live with others, all other household members need to stay at home and not leave the house for 14 days. The 14-day period starts from the day when the first person in the household became ill or if they do not have symptoms, from the day their test was taken. If anyone else in the household starts displaying symptoms, they need to stay at home for at least 10 days from when their symptoms appear, regardless of what day they are on in their original 14-day isolation period." 

The guidance is not particularly clear about what happens if their child is sent home because someone in their 'bubble' has tested positive. Our understanding (based upon anecdotal evidence) is that the child will be asked to take a test and, even if their test is negative, may still be advised to self isolate for 14 days. However, their family (including any siblings who may be in the same school) do not have to self isolate unless one of them develops symptoms, tests positive for coronavirus or they are told to self isolate by NHS Test and Trace.

Remember that staff have the right to take unpaid leave to deal with an emergency, such as collecting children from school at short notice because they are ill or have been told to self isolate.  

  1. Can we stop staff leaving our premises during their lunch breaks to minimise the risk of infection?

We don't recommend that you start dictating what your staff can do in their own time, other than reminding them that they should follow all national and local rules on social distancing and wear masks inside shops and takeaways.

You have a duty to assess risks and put in place proportionate measures to control the risk of infection. The guidance provides a number of examples, such as putting in place systems so that staff can maintain their distance from pupils and other staff, but these don't include restricting what staff do outside of the school/college environment. 

  1. Should we tell other staff members if a colleague tests positive?

The stay at home guidance advises anyone who tests positive to "consider alerting people who you do not live with and have had close contact within the last 48 hours to let them know you have symptoms of COVID-19".  Therefore, if a member of staff tells you they have tested positive, ask them if they have spoken to any of their colleagues with whom they've been in 'close contact' and ask them for their names. As indicated in the answer to question 5 you have a duty to send home anyone who has been in close contact with the person who has tested positive and advise them to self isolate for 14 days.

You may need to liaise with the NHS Test and Trace service to confirm which members of staff (and pupils) need to self isolate.

The guidance provided by the ICO says that "if you become ill with coronavirus, your employer might need to tell your colleagues. But that doesn’t mean they need to give out your name."

Therefore, if you do speak to other staff members, you must be careful what you say and limit this to what is necessary to safeguard the health and safety of others working with them. The basic rule of thumb is that you should only tell the smallest possible number of people the minimum amount of personal information about someone else that is necessary to keep them safe. 

Jo Moseley is a Professional Support Lawyer at Irwin Mitchell

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