FAQs about self isolation and COVID safety requirements in the Further Education Sector after 19 July
Despite the surge in the numbers of people testing positive for COVID-19, from today, Monday 19 July most restrictions, put in place in England to protect public health, will end. Guidance will replace legal restrictions and responsibility for making decisions to reduce the spread of the virus will shift from the government, and its public health officials, to employers and individuals.
In the context of education, the government has published two sets of guidance documents to help principals and senior management teams plan for the start of the Autumn term. For further education this is: Further education COVID-19 operational guidance
We consider answers to some of the frequently asked questions we've received from our FE clients about the guidance.
1. Do we have to change the way we do things straightaway?
You do have some discretion on some of the measures. For example, the guidance says that you can retain social distancing 'bubbles' (which might include staggering start and finish times) until the end of the summer term.
2. Can we ask staff and our students to continue to wear masks?
The guidance says that from 19 July, 'face coverings will no longer be advised for pupils, staff and visitors either in classrooms or in communal areas'. It suggests that face coverings will only be necessary if you have an outbreak in your college and you are advised to reintroduce them on a temporary basis by a director of public health. However, it's your responsibility to carry out risk assessments and minimise risk to its lowest reasonable level. The Delta variant is highly transmissible: the figure is expected to rise significantly once the remaining restrictions end - particularly if people revert back to their pre-COVID behaviours.
Children are not yet being vaccinated and will continue to catch and pass on the virus. And, although vaccination provides substantial protection against becoming seriously ill or dying, the vaccines are not 100% effective. The government estimates that around 25% of people who are fully vaccinated can catch the virus and pass it on.
If your assessment concludes that staff and/or students should wear face coverings in some settings, then you can enforce your policy - subject to the usual rules on allowing those who don't have to wear masks to be exempted. We recognise that it will be more difficult to enforce mask wearing amongst students. Parents and the students themselves may challenge your policy on the basis that wearing a face covering isn't a legal requirement and goes against government guidance. In addition, the DfE has made it clear that you can't refuse to educate someone just because they are not wearing a face covering.
Clear communication is essential as well as considering individual circumstances and making exceptions where necessary and reasonable.
Even if your risk assessment doesn't require staff (or students) to wear face coverings, it is sensible to give them the option to decide for themselves and support their choices.
3. Do staff and students have to take lateral flow tests before they return in September?
The guidance states that all FE students should (rather than must) receive two 'on-site lateral flow device tests, three to five days apart, on their return in the autumn term'. You can start testing from three working days before the start of term and can stagger return of students across the first week to manage this.
We don't yet know how most colleges are planning to implement testing. We suspect that many will ask the majority of their students to take the tests at home, if they can, and only return if they test negative. They will be encouraged to report their test results though the NHS Online reporting system, but won't necessarily share their result with you because the legal duty to identify COVID-19 contacts becomes the responsibility of NHS test and trace after 19 July - not yours.
The government hasn't yet updated its guidance on rapid asymptomatic testing in specialist settings to reflect the position from 19 July. That currently recommends 'students practice swabbing at an on-site ATS, to get used to the process, before moving to home testing'.
Students should then continue to test twice weekly at home until the end of September, when this will be reviewed.
Staff should undertake twice weekly home tests whenever they are on site until the end of September.
4. Do we need to retain our asymptomatic on-site testing facilities?
The guidance for FE recommends (rather than requires) colleges to retain a small asymptomatic testing site on-site until further notice so they can offer testing to students who are unable to test themselves at home.
5. Do staff who are double vaccinated have to self-isolate if they've been in close contact with someone with the virus?
Currently, yes. Anyone who is asked to self-isolate by NHS test and trace or any other medical professional has a legal duty to comply with the request. However, they don't have to legally self-isolate if they receive a 'close contact ping' from the NHS test and trace app. Our Employers guide to the NHS test and trace app explains the detail.
However, from Monday 16 August, new rules apply which, effectively, exempt anyone (aged 18 or over) who has received both vaccinations in the UK from having to self-isolate simply because they've been in close contact with someone with the virus. Anyone who receives their second vaccination shortly before being asked to self-isolate will have to wait two weeks from the date of their second injection before they can remain in work.
NHS test and trace will advise anyone who has been in close contact with someone who tests positive to book a PCR test. You should encourage your staff to do this to prevent asymptomatic infections.
Anyone who has symptoms or tests positive for COVID-19 must self-isolate for at least 10 days even if they have been double vaccinated.
6. How do we deal with members of staff who have not been vaccinated?
Any member of staff who isn't vaccinated will have to continue self-isolate if they develop the virus or are asked to self-isolate by NHS test and trace.
All employees have a legal obligation to inform their employer if they are asked to self-isolate. These rules continue even after most of the other legal restrictions end on Monday. Your staff may not be aware of this so it's a good idea to update your coronavirus policy (if you have one) and/or inform your staff of the legal rules, your expectations around self-isolation, and the potential consequences of failing to follow these. You may also want to treat non-compliance with the notification and self-isolation rules as misconduct (and potentially, gross misconduct).
We recommend that you encourage everyone who is eligible to be vaccinated in line with government guidance.
7. Do we have to pay people who are self-isolating?
That depends on whether or not they are well enough to work. If they are well and they can work from home, you must continue to pay them. However, if there isn't any work they can do at home, you may not have to pay them (we recommend that you take specific advice on this). They will, however, be deemed to be incapable of work under the statutory sick pay legislation and must be paid SSP (provided they meet the other qualifying conditions).
Government guidance for employers and workers on work absences due to COVID-19 suggests that if people can't work from home, employers should consider allowing them to take annual or unpaid leave whilst they are self-isolating. But, allowing someone to take paid annual leave won't be an option for any member of your staff whose holidays are fixed under their contracts of employment.
If you don't have to pay an employee's full salary during their period of self-isolation, they may therefore claim that they are ill and ask to be paid sick pay. They will be able to self-certify for the first seven days, but will need a doctor's note after that. You may need to have some robust return to work interviews with any member of staff who notifies you that they have to self-isolate and then separately tells you that they are ill with something unrelated to COVID-19. However, this is a tricky issue and unless you get the tone right, the employee may raise a grievance, get signed off with stress etc.
8. Do we have to allow a member of staff to postpone their holiday if they have to self-isolate?
The general rule is that if the employee is ill with COVID-19 or symptoms relating to it, then they must be allowed to take their holiday at another time, even if this means allowing them to carry it over to another leave year. However, unless the employee's contract of employment or your holiday policy says otherwise, you can usually limit this to the first four weeks leave in your holiday year.
Most colleges' holiday year is from 1 September to 31 August and many staff have to take holiday outside of academic terms. This means that most teachers and support staff will have used up at least four weeks of their total leave entitlement by the Spring. You should, therefore, be able to turn down any requests to postpone holiday until the start of the new 2021/22 academic year - provided there is nothing in the employee’s contract of employment and any related policies to prevent you.
If the employee is self-isolating because they've been in close contact with someone with the virus, but they are otherwise well, then the position is less clear. The purpose of taking a break from work is to help someone relax and recuperate from work. There's certainly an argument that having to self-isolate may prevent someone from fully benefitting from a break. Further, the Regulations that came into force last year which allow people to carry over some untaken leave, specifically reference self-isolation as being an acceptable reason to carry over leave.
However, this point hasn't been tested and, our view, is that a holiday doesn't have to be enjoyable, or taken away from home - it just needs to be a period away from work.
The approach you take will therefore depend on your appetite for risk.
Helen Dyke is a Senior Associate in Irwin Mitchell's Employment Team