In our last alert, we set out the questions that employers might want to consider in formulating their own procedures in response to the global coronavirus (COVID-19) outbreak.
Since then, the virus has spread to over 50 countries worldwide and here, we provide answers to some of the questions employers have been asking and give tips how organisations should deal with the disruption and employee issues which may arise.
What should an employer do to protect its employees?
An employer has a duty of care to their workforce under the Health and Safety at Work Act 1974 and must take reasonable precautions to protect the health and safety of employees.
Steps to take include:
- Keeping up to date with changing government, medical and travel advice.
- Issuing reminders of good hygiene practices.
- Consider banning handshakes (although government says good hygiene and handwashing practices is sufficient) and unnecessary close contact between colleagues and visitors.
- Providing adequate hand washing facilities, hand sanitiser and tissues.
- Cleaning communal areas.
- Issuing employees with information on the symptoms of the virus and what to do if they have concerns.
- Updating employees on changes to policies and practices (for example, homeworking or travel policies) as a result of the virus.
It appears that older individuals and those with other health conditions are at particularly high risk from the effects of COVID-19. Where the employer is aware that someone may be at additional risk, a risk assessment should be carried out to consider whether special action is necessary to protect them. This should be discussed with them (and if necessary, medical advice may also be sought). Employers may not always be aware that an employee is at risk; communications to employees should encourage individuals to seek medical advice and /or notify the employer if they are at particular risk.
Are employees who self-isolate entitled to be paid as usual?
This depends on why the employee is self-isolating. In some cases there may be no legal entitlement to pay, but there is a risk that an employee who will not be paid will not otherwise disclose that they have been asked to self-isolate and may attend work, risking the health of colleagues.
Those who have COVID-19 are entitled to sick pay under their employers’ usual policies and procedures.
As of 4 March 2020, the government has confirmed that those entitled to statutory sick pay because they are in self-isolation will receive it from day one, not day four, of their absence.
Acas’ advice to employers says that if NHS 111 or a doctor advises an employee or worker to self-isolate, they are entitled to statutory sick pay and that if the employer offers contractual sick pay, it’s good practice to provide this.
UK government advice and Acas advice say that employees who are in isolation and unable to work because they are following medical advice or government guidance should be paid sick pay even if there is no policy or contractual provision which would usually entitle them to be paid if they are not sick.
An employee who is required to self-isolate for 14 days after their return from affected areas (currently, Hubei Province including Wuhan, two cities in South Korea and ten towns in northern Italy) would therefore be entitled to sick pay.
Those who have been asked to self-isolate by Public Health England because they have been in close contact with a person with COVID-19 would (in line with the Acas guidance) be also entitled to sick pay, unless they are able to work from home.
Those who return from other named locations (northern Italy, Iran and a number of Asian countries including mainland China apart from Hubei Province) are not expected to self-isolate unless they develop symptoms, at which point they would be entitled to sick pay.
Some employers are taking a cautious approach, and asking employees who have returned from a high risk area not to attend work for a period of time, although the current government and medical guidance requires them to self-isolate only if they are showing symptoms. If the employee is not attending work at the employer’s request (and is unable to work from home), they should be paid their usual salary.
If an employee self-isolates through choice (i.e., where government guidance and medical advice does not indicate this is necessary), then they are not entitled to be paid. In practice, employers should seek to understand why the employee is self-isolating before taking a decision to withdraw pay. An employee who wants to self-isolate (and does not do a job that can be done from home) because they are at high risk of developing severe COVID-19 (for example, if they are pregnant or have a compromised immune system due to another condition) should discuss this with the employer so that employer can understand their reasons and whether any adjustments can be made to avoid a discrimination claim if they are not paid. Alternatives might include allowing or asking them to take holiday, agreeing a period of unpaid leave, paying sick pay or, if the employee is at particularly high risk, paying them at their usual rate of pay.
Should employees go to external events, visit clients or customers, or invite them to our office?
There is no government ban on such visits, but employers should decide if visits or attendance at events are necessary and where possible, consider replacing them with video conferencing or postponing until a later date.
What if an employee suspects they have coronavirus? What about those who have been in contact with them?
The employee should stay at home and take urgent medical advice. Current Government advice (which may change) is that other colleagues who have had contact with that person do not need to self-isolate unless the person has a confirmed diagnosis of the disease.
However, some employers may choose to ask some or all colleagues to work at home in the interim period pending the outcome of the test. This decision will likely depend on how feasible it is for the workplace to shut down. The employer may also want to initiate an additional deep clean exercise.
In this situation, employers should take care over the wording of communications:
- Generally it will not be appropriate to name the person.
- However those who are known to have had contact should be notified that they may have been exposed.
- Communications to those who have had contact should avoid panic, should reflect Government guidance and should be simple and clear. Employees should be encouraged to seek further guidance should they have particular concerns (for example due to their own health or because of contact with vulnerable relatives).
Are employees entitled to time off if they need to look after a child because their school or nursery has been closed over fear of coronavirus?
The employer may allow the employee to work from home if their job is one that can be done remotely.
Employees have the right to take a reasonable amount of unpaid dependent’s leave if necessary to care for children or make arrangements for their care. They may also be able to take unpaid parental leave for up to four weeks per year per child. Alternatively, they may ask to take annual leave.
There is no obligation on employers to grant employees additional paid time off in these circumstances. If an employer exercises its discretion to do so, this should be done fairly and in a non-discriminatory way.
Can employers instruct employees to travel on business?
Employers have a duty of care to their employees and should follow government travel advice at all times. This is changing fast as the situation develops. All employees required to travel on business should be covered by travel insurance, but insurers are likely not to cover any travel warned against by government advice.
The World Health Organisation recommends that all employers carry out a risk assessment of future travel plans to areas affected by COVID-19, and that employers should avoid sending those at particular risk of severe COVID-19 to those areas.
All non-essential travel to an affected area should be postponed. If employees are unsure whether travel is essential (particularly if it is to an affected area), they should discuss it with Human Resources or their line manager. Decisions may also depend on the nature of the trip – for example some employers are choosing to cancel attendance at conferences and large-scale events.
If a journey is necessary and not to an affected area, the employee may be expected to attend as usual. If an employee refused to travel to an unaffected area because of concerns about the virus, then in principle this would amount to a failure to follow a reasonable instruction and could expose the employee to disciplinary action. In practice, employers would want to understand the reasons behind this, and take into account factors such as the employee’s particular circumstances.
If a trip is planned to one of the affected areas, employers should consider whether it is essential or whether meetings can be replaced with video conferencing or simply postponed. Employees due to travel should discuss it with their line manager and HR.
An employee who is instructed to go abroad on business and then is unable to get home, or is required to isolate, because of the trip should be paid as usual for the period they cannot work.
Can employers insist that employees work from home rather than take sick leave if they need to self-isolate?
Not all jobs can be done remotely, but where this is possible, and the employee is not unwell, it will allow the business to function with minimal disruption.
An employer which usually permits the employee to work from home should have already carried out health and safety and data security assessments and ensured that the employee has all the equipment necessary to work from home. Employers will need to assess whether employees who do not usually work from home are able to do so, which will include reviewing the above.
Where businesses do not have enough laptops and other devices for all employees who need to work from home, it may be possible to give access to the employer’s systems via employee’s own devices. It is recommended that employers implement the steps necessary to enable this ahead of time, so as to be prepared should large numbers need to work from home.
Managers and colleagues should keep in touch with those working from home (especially those who are doing so for longer periods than usual, or who do not usually do so) to ensure that there are no issues with procedures and for the employee’s mental health and wellbeing.
Can employers conduct temperature checks of employees, contingent workers and visitors on their way into the office?
Employees’ temperatures would constitute special category personal data under the GDPR, and therefore could realistically only be collected in this way if there is a substantial public interest in doing so.
In our view, simply recording that an employee’s body temperature is above/below the threshold (without recording the individual temperature) would still constitute processing special category personal data. There is a significant risk that this measure would be considered disproportionate by the data protection regulator in the UK, especially if it is enforced on all employees as a blanket measure. If there was a significant coronavirus outbreak in a specific location (e.g., London), then this sort of measure is more likely to be seen as proportionate in the circumstances, at least if other measures such as home working are not feasible.
Do employers have to pay contractors or other non-employees who are unable to work?
Self-employed workers are not entitled to statutory sick pay. You should check the terms of the consultancy agreement to see if there is any obligation to pay fees where the consultant is willing to work but the office is closed, or they have been asked to self-isolate. Employers may want to consider making payments on a voluntary basis, to reduce the risk of self employed workers failing to report e.g. recent travel to an affected area or close contact with someone who has the virus.
Agency workers may be entitled to statutory sick pay through their agency.
Does absence due to self-isolation or quarantine count towards sickness absence?
Many employers monitor employees’ sickness absence and have procedures to follow when an employee has been off for a certain number of days or instances.
Employers must take reasonable steps to protect their employees’ health and safety, and the requirement to self-isolate is usually imposed upon the employee. Therefore, it would be expected that an employer would exclude any periods of quarantine or self-isolation from usual absence procedures.
Can employers prevent personal travel trips to high-risk regions (or elsewhere)?
Employers cannot force employees not to travel for personal reasons. However it is good practice to remind employees of the most recent government advice and what the consequences of a trip to a high-risk region could be (including self-isolation or quarantine on their return and what this would mean for their pay). If the employee cancels a trip voluntarily, the employer will not be liable to compensate for any costs not covered by travel insurance. Employers are advised to take care in their communications, as an employer could be liable to meet the costs if the employee has cancelled in response to a request not to travel.
Do employees need to prove they’ve been in self-isolation for 14 days?
Medical evidence is not required for the first seven days of sickness and after that, employers can request what evidence they require. Even if it is your normal procedure to require a fit note from the employee’s GP, this is unlikely to be realistic in these circumstances: firstly, the employees may not be ill in any case, and secondly, because patients are advised to stay away from GP practices if there is any risk they may have coronavirus.
An employee who claimed to have been required to self-isolate but was found not to have been telling the truth would be subject to your usual disciplinary procedure.
What if an employee refuses to come to work because of the risk of catching coronavirus?
Employers should speak to employees to understand the reason for their refusal.
The employee may be able to work from home. If they are not able to do so, you may be able to agree that they take holiday. In certain circumstances, an employer can require an employee to take holiday. Alternatively you could agree a period of unpaid leave. However, if it is not possible to reach a satisfactory solution, the employer may choose to begin disciplinary proceedings against the employee.
What if an employee does not follow hygiene rules?
Employees must follow their employer’s reasonable instructions. Failure to do so – for example, by not washing their hands, sneezing into a disposable tissue or their sleeve if a tissue is not available – would entitle the employer to take disciplinary action.
Business shutdowns due to the virus outbreak – what options are available to employers?
At the time of writing, the UK government has not announced any additional payments for businesses affected by suspected or confirmed cases of COVID-19. However, a lengthy period of disruption could be disastrous for some organisations.
Where a business is facing economic problems as a result of coronavirus (for example, because production has slowed because employees are unable to attend work, or lack of customers), an employer with the contractual right to do so can lay off employees or put them on short-time working arrangements. This is a short-term alternative to dismissal and qualifying employees are entitled to claim a statutory redundancy payment or a statutory guarantee payment from their employer.
The UK government’s action plan published on 3 March 2020 says that businesses facing short term cash flow issues (for example, as the result of reduced demand) may contact HMRC if they are concerned about falling behind on their tax payments and may be offered the tax authority’s Time to Pay system on a case-by-case basis.