Test and trace scheme: considerations for employers

The NHS Test and Trace service are intended to form a central part of the government’s coronavirus recovery strategy, with those who have tested positive for COVID-19 asked to register via the NHS Test and Trace website and identify any individuals that they have recently been in close contact with.

The intention is that contact tracers will then be tasked with notifying those considered to be at risk who will, in turn, be required to self-isolate at home for 14 days, regardless of whether they are displaying symptoms.

Close contact is defined as contact with an individual who has tested positive for COVID-19 anytime from two days before to seven days after the day their symptoms started.

Examples of close contact include:

• having face-to-face contact (less than 1 metre away) with someone who has COVID-19;
• spending more than 15 minutes (within a 2-metre distance) with someone who has COVID-19; or
• travelling with someone, who has COVID-19, in a small or large vehicle or being close to them on a plane.

Interactions which have taken place through a perspex screen, for example, will not count as close contact.

As a result, employers may wish to consider implementing appropriate social distancing measures in order to avoid instances of “close contact” within the meaning of the guidance and in turn reduce the risk of multiple employees being forced to self-isolate where a single employee tests positive for COVID-19.

In theory at least, if social distancing measures are correctly adhered to, employees who work with an employee who receives an alert from a contact tracer will not have been in ‘close contact’ with that employee and therefore should not need to self-isolate.

Employers should ensure that they have up-to-date contact details for all employees, including their full names and phone number. Employers with workplaces such as offices, construction sites, factories, laboratories and warehouses should also aim to retain a record of employees’ shift patterns for 21 days in order to better assist the Test and Trace scheme. 

Naturally, such measures carry with them implications from a data protection and privacy perspective and as such employers should ensure that they inform their employees of the reasoning behind the collection of their data, and only collect data that is necessary for the purposes of the Test and Trace scheme, and have clear and accessible privacy information policy in place prior to collecting such data.

Additional guidance, specific to particular industries such as the hospitality sector, tourism and leisure sector, hairdressers, tailors, barbers, and places of worship has also been provided with the government asking these employers to retain a record of any customers or visitors who attend their establishment for at least 21 days.

Employers in these industries should obtain the customer or visitor’s name and phone number and the date and time they attended the establishment as well as noting any employee they came into “close contact” with.

Again, data protection and privacy considerations arise and employers ought to inform the customer or visitor of the reasoning behind the request for the information (i.e. for the purposes of the Test and Trace scheme) and explain to them who will have access to their data and how long their data will be retained.

Employers must take steps to ensure that their employees know how to handle data safely and securely and that they understand what they can and cannot do with data gathered from customers or visitors.  A failure to do so can give rise to penalties including criminal penalties pursuant to the General Data Protection Regulation 2018.

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