Tick Tock, Tick Tock, Tick Tock ... goes the school COVID clock!

The rules on when children must stay at home and self-isolate are (like most Government Guidance during the pandemic) detailed and complex. The ‘System of Controls’ for schools, published by the Department of Education (DoE) and the ‘Stay at Home Guidance’ for households with possible or confirmed COVID-19 infection (endorsed by Public Health England (PHE)) are available at the links at the end of this blog.

First let’s remind ourselves of the recognised symptoms of COVID-19 infection:

• A high temperature – this means feeling hot to touch on the chest or back.
• A new, continuous cough – this means coughing a lot for more than an hour, or 3 or more coughing episodes in 24 hours.
• A loss or change to sense of smell or taste (anosmia) – this means cannot smell or taste anything, or things smell or taste different from normal.

The following is the briefest of summaries of the relevant parts of the DoE’s System of Controls for Schools and the Stay at Home Guidance from PHE:

1. Pupils with Symptoms:

Pupils with symptoms of COVID-19 must not go into school and must be sent home to self-isolate if they develop symptoms whilst at school:

• Parents/carers will need to book a test for the child through NHS Test and Trace.
• The child must self-isolate for at least 10 days from when their symptoms started.
• Household members of a child with symptoms must self-isolate for 14 days from when the child first exhibited symptoms (unless the child tests negative).
• Pupils who have been in close contact with the symptomatic child at school do not need to be sent home to self-isolate unless they develop symptoms themselves or, if the symptomatic person subsequently tests positive, or if they have been requested to do so by NHS Test and Trace.

2. Pupils in close contact to a COVID-19 positive child (or staff member):

Pupils who have been in close contact with a pupil (or staff member) who has tested positive for COVID-19 will be sent home and advised to self-isolate for 14 days. This is likely to be where someone in the child’s ‘bubble’ has a positive test:

• Household members of those contacts who are sent home do not need to self-isolate unless the child who is self-isolating subsequently develops symptoms.
• Where the self-isolating child develops symptoms, the parents/carers will need to book a test for the child through NHS Test and Trace.
• If the test result is negative, the child must remain in isolation for the remainder of the 14-day isolation period. This is because they could still develop COVID-19 within the remaining days.
• If the test result is positive, the school should be informed immediately, and the child should isolate for at least 10 days from the onset of their symptoms.
• The household members should self-isolate for at least 14 days from when the child first had symptoms.
• The obvious consequence for many parents and carers will be the need to take time off work to look after children who have been sent home. In some cases, it may be possible for parents and carers to continue to work from home, perhaps where homeworking has been established during lockdown and their children are older or they have other child-care arrangements in place. There will however be many cases where this is simply not possible.

Statutory Sick Pay (SSP):

There are clearly circumstances where parents and carers are required to self-isolate for a minimum of 14 days where the child has been sent home with symptoms or has tested positive for COVID-19. Following the outbreak of COVID-19, the SSP regime was amended (and came into force on 6th July 2020). Additional categories of employees were “deemed incapable of work” and entitled to statutory sick pay. Parents and carers who are self-isolating to prevent infection or contamination with coronavirus and by reason of that isolation are unable to work may be entitled to SSP. This includes:

• Parents and carers living with a child who has COVID-19 symptoms, however mild, and is staying at home for 14 days (or until that child has tested negative for COVID-19);
• Parents and carers who were staying at home because they lived with a child who has COVID-19 symptoms and then developed symptoms themselves and must stay at home for 10 days;
• Parents and carers who are staying at home for 14 days, having been told in writing by NHS Test and Trace that they have had contact with a person who was infected with COVID-19.

People who are isolating because of COVID-19 symptoms or because they live with someone who has symptoms, or who have been told to isolate by a test and trace service, can get an isolation fit note by calling the 111 coronavirus service in England, or NHS Direct Wales, or in Scotland, NHS Direct. This is explained here.

The complexities of the operation of the revised statutory sick pay scheme are beyond the scope of this blog and specific legal advice should be sought.

Contractual Sick Pay

Employers must also be mindful of their own contractual sick pay obligations. The expansion of the ‘deeming’ provisions to expand the definition of those entitled to statutory sick pay beyond those who are actually ill themselves does not automatically apply to contractual sick pay policies. Usually, any contractual entitlement over and above statutory entitlement, will be unaffected by changes to the SSP legislation. There are three types of cases:

• Contracts that have an express definition of sickness of their own. That definition of sickness will continue to apply.
• Contracts which define sickness by reference to the SSP legislation as amended from time to time. This is unusual but possible. The contractual definition of sickness will follow the statutory one.
• Contracts that do not define sickness at all. These are the most common. Strictly speaking, when construing a contract, it is the intentions of the parties at the date that the contract was made that counts. Obviously, the impact of the COVID-19 outbreak is unlikely to have been in contemplation at that time. It remains to be seen how courts will construe individual contractual sick pay policies.

Any entitlement to contractual sick pay will be fact specific to the individuals contract of employment and specific legal advice should be sought.

Conclusion

The obvious category of parents and carers who will not be entitled to sick pay (statutory or otherwise) because they have not been ‘deemed unable to work’ under the revised statutory sick pay regime (or on proper construction of any contractual sick pay policy) are those providing child care to children who have no symptoms of COVID-19 (and have not tested positive) but have nevertheless been sent home because they were in a ‘bubble’ with a child (or staff member) who has tested positive for COVID-19. The Guidance is clear that these children must stay at home for 14 days even if they do not develop symptoms of COVID-19 or develop symptoms and subsequently test negative – see category 2 above as highlighted in bold. This is likely to be the category into which the vast majority of “stay at home” children fall. As Paul Whiteman (General Secretary of the National Association of Head Teachers) has said: “Close contacts of confirmed cases must follow the full 14-day self-isolation period and should only seek a test if they have symptoms”. The actual number of non-symptomatic children involved will vary from school to school depending on the size of their ‘bubbles’. In most cases this will involve whole classes, entire year groups or even the whole school.

In a further Resource blog, we consider the options and risks for employers to consider for parents and carers unable to work because they need to care for the ‘bubbled’ children who are sent home to self-isolate for 14 days but who have no symptoms of COVID-19.

This blog was prepared in consultation with the invaluable opinions of the employment barristers of Cloisters Chambers, with special thanks to Daniel Dyal, Sally Robertson and Charlotte Goodman.

The opinions in this blog form a general overview of the law and its application. You are advised to seek specific legal advice for individual cases as each will be highly fact-specific and the current COVID-19 pandemic presents its own unique and untested legal challenges.

Actions for schools during the COVID-19 outbreak.

NHS test and trace how it works.

COVID-19 stay at home guidance.