As the number of COVID-19 cases globally and in the UK continues to increase, employers may be wondering what measures they should be taking and what rights their employees have. A number of workplace related issues have been reported in the media, and just today there have been reports that HSBC have had to send employees home from their head office due to an employee testing positive for the disease.
So what measures should employers be taking, and what rights do employees have? Here we look at some commonly asked questions.
First of all, it is worth noting that employers have a duty to protect the health, safety and wellbeing of their employees as far as reasonably practicable. This will include giving consideration to the risks presented by the virus, including those who might be at particular risk due to underlying health conditions.
What measures should employers be taking?
Practically, there are a number of measures employers could consider taking in order to mitigate risk and prepare for potential issues:
- Encourage employees to follow any government recommended measures;
- Encourage hygiene measures such as hand-washing and provide hand sanitiser, tissues etc.
- Consider making use of home working or flexible arrangements;
- Consider cancelling planned business travel based on consideration of necessity and risk;
- Encourage employees who have been on holiday in affected areas to self-isolate on return (or at least not to come into the workplace) making use of any flexible arrangements which are available)
- Consider any sector specific issues, such as where employees have significant contact with the public, are involved in food production and so on.
- Put in place a business continuity plan considering situations such as where the workplace has to close due to an outbreak, staff shortages or significant reduction in workforce, or a significant downturn in business.
Can we require employees to work at home/not come into work?
In order to protect the health and safety of employees, as well as to avoid the situation where the workplace might have to be closed and the associated economic impact, it may be a sensible measure to require employees not to attend work if there is a concern they might have or have been exposed to the virus. It is possible to require employees to remain at home in these circumstances.
If they can reasonably work from home and appropriate arrangements can be put in place for this, then employees required to stay home should be paid as normal. However, if the employee cannot work from home but is otherwise able and willing to work and it is the company which is requiring them not to attend, it may be a breach of contract not to pay them and therefore employees required to remain at home should be paid in any event. This can, however, cause further issues with employees whose income is dependent on work, such as commission or bonus. This may need to be considered on a case by case basis. Depending on the industry, it might be that the amount of work available is affected in any case. If there is a downturn or the workplace needs to close, consideration may be given to lay off or short term working if contracts permit.
Are employees entitled to sick pay if they are self-isolating or quarantined?
The more likely scenario is that employees will self-identify that they are at risk, or will have been medically advised to self-isolate. There has been much in the media recently about the rights of employees to be paid in this situation.
There are practical reasons for paying employees who are self-isolating where possible, as the financial impact of not receiving pay could incentivise an employee to come to work, thereby putting other employees and the business at risk.
The government has also announced measures for emergency legislation which allow those who are self-isolating to claim statutory sick pay (SSP). It was announced on 12th March that the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 has extended the definition of “persons deemed incapable of work” to a person who is “self-isolating himself [or herself] from other people in such a manner as to prevent infection or contamination with coronavirus disease… and [who] by reason of that isolation is unable to work.” However, this does not affect the provision that SSP is not payable for the first three qualifying days in any period of sickness. Legislation is also expected that will provide that employees entitled to SSP will receive it from the first day of absence, rather than the fourth day as would usually be the case. This will be temporary measures and will lapse when the government concludes that the provisions are no longer required.
Small and medium-sized businesses are also able to reclaim SSP paid for sickness absence due to coronavirus. Employers with fewer than 250 employees will be able to reclaim 2 weeks’ of SSP paid to an eligible employee due to coronavirus. While employees do not have to provide a GP fit note, employers should still maintain records of staff absences and SSP payments. The government plans to work with employers in the coming months to set up the repayment scheme for employers as soon as possible.
What if an employee does not want to come to work due to fear about the virus?
Employees may fear coming to work as it may put them at greater risk of contracting the virus. This fear may be greater for employees who suffer from a health condition which makes them more vulnerable, or who have a relative who does. It would be advisable to consider the genuine concerns of employees and seek to reassure them or carry out risk assessment, as well as consider whether any measures can be put in place, such as homeworking.
If an employee refuses to attend work and cannot work from home or otherwise carry out work remotely, consideration may be given to agreeing periods of annual leave or other unpaid leave. If the concerns appear to not be genuine or overblown and the employee refuses to come to work without good reason, it is possible to commence disciplinary proceedings on the basis that they are failing to follow reasonable instruction. However, consideration should be given to whether imposing a sanction or dismissing in such circumstances would be fair and reasonable.
What happens if an employee is stuck abroad?
There has been much on the news about people effectively ‘stuck’ on cruise ships and in hotels in Tenerife due to an outbreak while they are on holiday. So what should employers do if the employee is absent from work due to being stuck abroad?
Presumably, the employee will have taken annual leave in order to be away in the first place, and this period may cover some of their absence. If the period of annual leave has ended and the employee is unable to return to work, generally the points above would apply. If they are actually ill with the virus, they will be entitled to sick pay, whether SSP or contractual pay under company sick pay provisions. If they are quarantined or isolating under medical advice, they may again be entitled to sick pay. In all cases, it would be advisable to make contact with the employee to keep up to date and consider what options are available as the situation progresses, such as taking additional annual leave if necessary.
What guidance is available?
Both the UK and Scottish governments are publishing updated information on the virus on a daily basis. Health Protection Scotland have produced guidance for non-healthcare settings, covering how to prevent the spread of the infection in the workplace, and what to do if it is discovered someone in or who has recently attended the workplace may have the illness.
ACAS have also produced workplace guidance on coronavirus which is kept under review and will likely be updated as the situation develops.
On 12th March, the Prime Minister issued a public statement, explaining that the UK has now moved from the ‘containment’ phase to the ‘delay’ phase of the pandemic. In outlining the government guidance, the Prime Minister explained the following:
- Anyone with a “new, continuous” cough or high temperature is advised to self-isolate for seven days;
- Schools have been advised to cancel all trips abroad;
- Anyone over 70 or with a pre-existing health condition have been advised not to go on cruises.
The Prime Minister also advised that further measures, such as school closures, are not being implemented right now, but may become a reality as the situation develops. Like other countries, the government is also considering suspending large-scale events, in a bid to protect and reduce the strain on public services.
13th March 2020
