*As at 6 November 2023, the guidance remains the same as in our original article dated 11 April 2022
Over the past few months, the Government has gradually been phasing out self-isolation legislation in favour of Government guidance and advice.
With there no longer being a legal requirement for people, and therefore pupils and members of staff, to self-isolate if they test positive for Covid-19, we summarise some guidance that schools may find useful as they face the increasing dilemma of pupils and staff attending school with Covid-19 – which could put other pupils and members of staff at risk.
Can you refuse to admit a child into school who has tested positive for Covid-19, or is displaying Covid-19 symptoms?
In line with the Government guidance laid out in the ‘Living with Covid-19’ plan, advice now circulates around encouraging people who have symptoms of Covid-19 – or have received a positive test result – to exercise greater personal responsibility, try and stay at home, and avoid contact with others.
In line with this advice, pupils too should still self-isolate if they have Covid-19, or have Covid-19 symptoms. However, unlike adults, children and young people under the age of 18 will only be required to self-isolate for three days, as there is evidence to suggest that Covid-19 infection in children has a shorter duration compared to adults.
Additionally, schools have a right to refuse admittance of a pupil with Covid-19, or Covid-19 symptoms, as they have with any other infectious disease, such as chicken pox, if they reasonably feel it is necessary to safeguard the school community from infection.
This point is reflected in the Department for Education’s Schools’ Covid-19 operational guidance, which states:
“If a parent or carer insists on a pupil attending your school where they have a confirmed or suspected case of Covid-19, you can take the decision to refuse the pupil if, in your reasonable judgement, it is necessary to protect other pupils and staff from possible infection with Covid-19”.
Taking into account the Government and DfE guidance, schools should feel reassured in their ability to refuse entry to a pupil with, or displaying, Covid-19 symptoms in order to protect the school community from possible infection. This decision should be made in line with public health advice and the school’s own health and safety policies.
Currently, schools will be required to provide online education to pupils who have been refused access to the school.
What if a member of staff test positive but has no symptoms and wants to work?
As there is no legal requirement to self-isolate if you test positive for Covid-19, theoretically a staff member could be positive and still attend their workplace.
However, this would be in breach of UKHSA guidance which states:
“People with symptoms of a respiratory infection, such as Covid-19, and who have a high temperature or do not feel well, should try to stay at home and avoid contact with others. Those who are asked – or choose to test – and get a positive Covid-19 result should try to stay at home and avoid contact with other people for 5 days, or 3 days if you are under the age of 18, following the day of their positive result.”
Therefore, following this guidance a member of staff should self-isolate if they test positive for Covid-19.
Employers have a general duty to protect the health and safety of their employees and, on that basis, it is likely to be a reasonable management instruction to send a staff member home if the school has evidence of a positive test or show any of the main Covid-19 symptoms but the individual is in work or attempting to come to work.
However, it is important to note that if an employee is physically fit to work and is willing to do so, and they cannot do their job from home, they will have to be paid in full.
Other important things to remember
- If a member of staff says they have Covid-19 but no test to prove it, they may note a lack of free testing as a reason why. However, the school has a right to ask for a fit note if an employee is off work for more than 7 days.
- To combat a lack of free testing, you could consider covering testing costs directly, or having a supply of tests available to your staff members if they start displaying symptoms. Although, there is no legal obligation to do this.
- If a staff member is lying about the reason for their absence, then this could be a conduct issue and be dealt with appropriately under your school’s disciplinary policy.
- Good ventilation, hygiene, and encouraging vaccination uptake, as well as following new additional advice from local directors of public health, are the best measures to prevent the spread of Covid-19.
- Ensure your school communicates openly and transparently with staff members, so they know what to expect should they display Covid-19 symptoms or test positive.
This article was written by Claire Berry, an employment solicitor at Price Bailey. If you would like advice or support regarding anything in this article please fill out the form below.
We always recommend that you seek advice from a suitably qualified adviser before taking any action. The information in this article only serves as a guide and no responsibility for loss occasioned by any person acting or refraining from action as a result of this material can be accepted by the authors or the firm.
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