The COVID-19 App: issues for employers

As a result of recent resurgence in cases of COVID-19, the last two weeks have seen two major developments in the effort to secure greater adherence to self-isolation: the NHS COVID-19 app and the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.

NHS COVID-19 App

The new coronavirus app launched on 24 September 2020. The NHS website contains a number of helpful FAQ questions on its use (available here), which also addresses issues specifically for employers.  

In broad terms, the app uses the Bluetooth of the host phone to detect nearby telephones which also have the app installed. Those who receive a positive test result can enter this on the app anonymously. If another app then detects that it has been in close contact with a phone belonging to someone who has tested positive for the virus, it will alert the user that they must self-isolate. The assessment of 'close contact' is based on an algorithm, but in general, being within 2 metres of a positive case for 15 or more minutes will categorise a user as a close contact.

To complicate matters, there has been some confusion about notifications from the app which inform the user that there has been 'possible Covid-19 exposure' (as opposed to a strict self-isolation notification). This message means that a potential exposure has been detected, but that it is being verified. As the exposure has yet to be confirmed, users who receive these messages are not being asked to self-isolate, and are only told to do so if they subsequently receive a self-isolation notification, which will provide a countdown feature.

The app is free to download and is entirely voluntary. Employers cannot require employees to download it.  

When the app was launched, there was some confusion as to the legal weight behind a self-isolation notification from the NHS COVID-19 app. Whilst the Test and Trace government guidance states that a notification by the Test and Trace service to self-isolate means that employees must self-isolate, Matt Hancock stated that notifications from the COVID-19 app were only advisory and that self-isolation in these circumstances would be 'voluntary'.

This ambiguity has been cleared up by new regulations which came into force on 28 September 2020…

The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020

These new regulations give legal force to the self-isolation measures which have been introduced in recent weeks.

They set out a number of provisions relating to self-isolation, including the periods of self-isolation required following a notification from the Test and Trace Service, as well as the sanctions which may be levied against those who breach the regulations.

Regulation 2, which sets out the requirement to self-isolate, states that it does not apply to notifications from the COVID 19 smartphone app. This is because app users are anonymous, and therefore the government are unable to enforce any sanction against them for breaching the regulations. However, just because the regulations do not enforce notifications from the app, this does not mean that following an app notification is entirely voluntary. The app forms part of the Test and Trace System, and so whilst they may not be breaching the regulations, anyone who fails to self-isolate after receiving an app notification will be breaching government guidance.

Regulation 7 addresses employers' duties in relation to self-isolation of their employees. It prohibits an employer knowingly requiring or encouraging an employee who has been told to self-isolate (again, other than by the app) to come in to work. An employer who breaches this regulation commits an offence and may be subject to a fine, and an employee can also be fined if they do not self-isolate in these circumstances.

Employers' concerns looking forward

Whilst the regulations address the enforceability of a 'notification' from the NHS Covid-19 app, employers are likely to have a number of questions about the effect of a self-isolation notification on their employees and the knock-on effect this may have on their business.

1. Can employers prohibit employees from downloading the COVID-19 App on their phone?

There is an understandable concern amongst some employers that the automatic nature of the app notification may have undesirable and commercially disruptive consequences. 

Employers may have gone to great lengths and cost to ensure that the work environment is COVID-secure, but one positive case of coronavirus at work could potentially trigger a chain reaction leading to large numbers of employees being advised by the app to self-isolate. 

Some employers may therefore wish to prohibit employees from downloading or to pause it during working hours. However, employers should be aware that the NHS guidance on the app provides for only three occasions in which an employee should 'pause' the app at work:

• If they store their phone in a locker while they are working;
• If they are already protected by a Perspex (or equivalent) screen; or
• If they are a health and care worker and are wearing medical grade PPE, such as a surgical mask, in a clinical setting.

Unless one of the above applies, it would be inadvisable for employers to tell employees to pause the app whilst they are at work. Similarly, employers are unable to prohibit employees downloading the app, just as they are unable to prevent an employee downloading any other app.  It is ultimately up to an employee what applications they download to their own mobile phone. 

Whilst employers may have more discretion in this regard with work phones, there will also be further problems with prohibiting the app regardless of whether the phone belongs to the employer or employee. Prohibiting the app may expose employers to potential whistleblowing disclosures for breaching their general health and safety duty. There may also be personal injury claims if an employee catches the virus at work, and a court is unlikely to look favourably on an employer who told their employees not to download the app, or ordered them to 'pause' the app against NHS guidance.

2. Can employers insist that employees return to work in a COVID-secure workplace when they have been notified to self-isolate by the app?

As above, we would advise against employers doing this.

The COVID-19 app forms part of the NHS Test and Trace system, and so any order to ignore a notification from the app will be against government guidance, even if it does not breach the new regulations. As such, instructing employees to attend work despite a self-isolation notification will expose employees to similar risks to those outlined above, including claims for breach of the general health and safety duty, personal injury claims and automatic unfair dismissal claims on the basis of a whistleblowing disclosure or a risk to health and safety, in addition to negative publicity.

Ultimately, any employee who receives a self-isolation notification through the app is free to, and should, accept the advice to self-isolate. Employers can and should take steps to ensure the workplace is covid-secure and to prevent employees receiving notifications (e.g. by ensuring sufficient distance between employees), but if a notification comes through, there is little employers can do to stop employees from self-isolating without significant risk of litigation and damage to reputation.

If employees have only received a 'possible COVID-19 exposure' message from the app, they are not advised by Test and Trace to self-isolate, and can therefore be required to attend work. However, if this becomes a self-isolation notification, they should then self-isolate.  Employers should seek advice if an employee claims that they have to self-isolate as a result of a 'possible COVID-19 exposure' message from the app.

3. Can employees claim Statutory Sick Pay (SSP) if they receive a notification from the app?

Employees who receive a self-isolation notification from the app will be able to get an isolation note from NHS 111, which will act as evidence that they are not fit to attend work and they will be entitled to claim SSP. 

On the other hand, employees who receive the 'possible COVID-19 exposure' notification will not be obligated under the government guidance to self-isolate, and thus will not be entitled to obtain an isolation note from NHS 111 and cannot claim SSP.

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For further information and advice on the above, please contact the Employment Team or your usual Wilsons contact.