12th January 2022

Ask The Expert

“I really enjoyed it – really good format and 30 minutes is ideal.” Just one of the fantastic comments Blair and I received after our first Ask the Expert webinar last week.

Unsurprisingly, there were a lot of questions about the new rules in relation to isolation that came into effect from 6 January. Here is a summary of the new rules in Scotland:

If you have symptoms of Covid-19 you must isolate for 10 days unless:

  • you take a lateral flow test on day 6 and 7; and
  • you test negative on both days and you do not have a fever.

In that case, isolate ends on day 7.

If you are a close contact of someone who has tested positive for Covid-19 and:

  • you triple vaccinated – test negative for 7 consecutive days with lateral flow tests and you do not have to isolate. If you test positive on any one of those 7 days and you must isolate for 10 days from that day.
  • you are not triple vaccinated – you must isolate for 10 days and book a PCR test. Even if the test is negative you must isolate for 10 days.

If you do not have symptoms of Covid but you test positive using an LFD device there is no requirement to book a PCR test and again you can end quarantine early as above regardless of vaccination.

The requirement to get a PCR is now more limited (including when you have symptoms or when you are an unvaccinated close contact of someone who has tested positive), so we were asked we were asked if employers can nevertheless insist on a PCR as evidence. The answer to that is no, not if it is for the purposes of paying statutory sick pay. The entitlement to statutory sick pay arises on day one of a covid-related absence (but the requirement for the absence to last 4 or more days has not changed) and employees can self-certify for 28 days (until 26 January 2022).

However, employers are concerned that the new rules are open to abuse. For example, individuals self-report the results of lateral flow tests and it’s possible an employee could report a false positive result and produce the confirmation text or email message they receive to their employer. Our view is evidence of a PCR test could be requested where company sick pay is paid and/or there is a reasonable suspicion that the absence is not genuine. For example, an employee has a higher number of covid-related absences than others in the workplace without an obvious explanation such as a member of their household is a nurse, teacher or working in another role or setting that potentially brings them into contact with Covid more often.

Do you have an employment law question that you would like answered? Join us at our next Ask the Expert webinar on Friday 11 February 2022, 9.30am. Book your place by emailing asktheexpert@blackadders.co.uk

Donna Reynolds, Partner
Accredited by the Law Society of Scotland as a Specialist in Employment Law & Discrimination Law
Employment Law
Blackadders LLP


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