NHS Test and Trace: new employer guidance published

The government has published recent guidance on what organisations in certain sectors should do to support NHS Test and Trace. This supports previous workplace guidance on NHS Test and Trace.  

NHS Test and Trace is intended to contain outbreaks of COVID-19 by promptly identifying people who may have been exposed to the virus and requiring them to self-isolate if necessary. We considered here how NHS Test and Trace works and its potential impact on a workforce.

Organisations are now required to keep a temporary record for 21 days of all staff, customers and other visitors to their premises, and to assist NHS Test and Trace with requests for that information if needed. The workplace guidance emphasises that, although these actions may seem disruptive for businesses, they are less disruptive than an outbreak of COVID-19 in the workplace would be, and far less disruptive than further periods in national or local lockdown.

In this article, we consider in particular what actions employers should take in order to comply with current guidance in relation to NHS Test and Trace.

Who does the new guidance apply to?

The guidance applies to organisations operating establishments in the following sectors, regardless of whether their venues are indoor, outdoor or mobile:

• Hospitality, including pubs, bars, restaurants and cafés
• Tourism and leisure, including hotels, museums, cinemas, zoos and theme parks
• Close contact services, including hairdressers, barbershops and tailors
• Facilities provided by local authorities, including town halls and civic centres for events, community centres, libraries and children’s centres, and
• Places of worship, including use for events and other community activities

What does the guidance require employers to do?

Employers are required to:

• Maintain temporary records of staff, customers and visitors who attend their premises
• Help their staff, customers and visitors understand the importance of NHS Test and Trace in stopping the spread of COVID-19 by explaining why they are asking for contact information and encouraging people to provide it
• Respond to requests for information from NHS Test and Trace
• Encourage members of staff to comply with any notifications to self-isolate and support them when in isolation, and
• Where necessary, work with NHS Test and Trace to minimise transmission of COVID-19

What information should be obtained for this purpose?

Employers should obtain the following information:

• The names and telephone numbers of all staff who work at their premises
• The dates and times their staff are at their premises
• The name of each person attending their premises, including all customers, agency workers, contractors, volunteers, suppliers and other visitors (or the ‘lead member’ of the group and the number of people in the group, if there is a group of people attending the premises together)
• A contact phone number for each person attending their premises, or for the lead member of a group of people
• Date of visit, arrival time and, where possible, departure time, and
• If a visitor will interact with only one member of staff (e.g. a hairdresser), the name of the assigned staff member should be recorded alongside the name of the visitor

Many organisations will already have in place or may have recently introduced booking, or other systems that record this information in relation to customers and other visitors to their premises. 

Employers should ensure that they have up-to-date contact information for all staff members. Employers should also consider if they need to introduce new systems for recording the dates and, specifically, the times during which individual members of staff attend the workplace, especially as we are likely to see increased flexibility in the hours and days of physical attendance at workplaces in the post-lockdown era. Recording, as accurately as possible, when staff members attend their employer’s premises will identify which staff members may have come into contact with each other and minimise the number of people needing to be contacted by NHS Test and Trace. 

Can staff members refuse to provide information for NHS Test and Trace purposes?

Providing information for the purposes of NHS Test and Trace is voluntary for members of the public. If a customer or visitor does not want their details shared for the purposes of NHS Test and Trace, they can choose to opt-out and, if they do so, their information should not be shared with NHS Test and Trace. 

Employers may, however, choose to make provision of certain information for the purposes of NHS Test and Trace mandatory for their members of staff, in order to promptly identify people who may have been exposed to COVID-19 and, in so doing, contain a potential outbreak of the virus within the workplace.

The General Data Protection Regulation (GDPR) allows an employer to request certain information from its staff and share it with NHS Test and Trace to help minimise the transmission of COVID-19 and support public health and safety. It is not necessary for an employer to seek consent from each member of staff in order to do this, but an employer should make clear to all members of staff what information is being collected and why and what the employer intends to do with the information, including the intention to share it with NHS Test and Trace. If an employer already keeps a record of physical attendance at its premises, it should make staff members aware that this information, together with their contact information, may now be shared with NHS Test and Trace.

How long should employers retain this information?

Employers should retain a record of a staff member’s attendance at their premises (date, time of arrival and time of departure) for 21 days. This reflects the incubation period for COVID-19 (which can be up to 14 days) and an additional seven days to allow time for testing and tracing. After 21 days, this information should be securely disposed of or deleted. 

The requirement to dispose of the data after 21 days relates to a record that is created solely for the purpose of NHS Test and Trace. If an employer requires a record to be kept for other business reasons (e.g. payroll), then it does not need to delete the record after 21 days. An employer must, however, comply at all times with the GDPR in relation to any data collected about their staff members and, accordingly, should ensure that such data is not kept for longer than is necessary.

When will NHS Test and Trace request information and what will it do with it?

NHS Test and Trace will ask employers for information about their staff members only where it is necessary, either because someone who has tested positive for COVID-19 has listed the employer’s premises as a place they visited recently, or because the employer’s premises have been identified as the location of a potential local outbreak of COVID-19. 

If an employer receives a request for information from NHS Test and Trace this does not necessarily mean that the employer will be required to close their premises. NHS Test and Trace may undertake a risk assessment and work with the employer to understand what actions need to be taken to minimise transmission of COVID-19. Depending on the circumstances, including the length of time that has elapsed, such actions could include arranging for staff members to be tested, asking staff members to take extra care with social distancing, or asking certain staff members to self-isolate.

How can employers support staff who need to self-isolate?

NHS Test and Trace will send a formal notification to each individual (either a phone call, letter, email or text message) setting out for how long the person needs to self-isolate. The guidance requires employers to provide support to members of staff who are notified by NHS Test and Trace that they need to self-isolate. Government guidance as of 21 July 2020 was still that everyone should be working from home if they are able to do so. If a member of staff’s existing role cannot be performed at home, and provided they are fit and well, an employer should try to find alternative work for them to complete at home during the period of self-isolation. If it is not possible for the member of staff to work from home, employers must ensure that the member of staff receives at least statutory sick pay and should give them the option to take paid annual leave instead, if they prefer.