Latest Advice regarding CoronaVirus 19.03.20

March 19th, 2020

During this time of great uncertainty, DCL would like to reassure you that we are doing everything possible to keep you up to date with the latest developments and policy changes that may affect your business. Our consultants are now working remotely but will be available for your questions and for guidance on changing policy by email or phone. Obviously, the situation has resulted in a huge increase in enquiries and so we ask for your patience at this difficult time. 

We continue to receive calls and emails from clients asking how to deal with employment law issues raised by the recent COVID-19 (Coronavirus) outbreak. The following is an update on the advice given last week, incorporating recent changes to government advice and policy with regards Covid-19 and action to be taken. 

Please note that this remains general advice about issues that we think may arise rather than the specific situation of any particular client.  

The situation is so fluid we strongly advise checking the government’s latest information and advice on a daily basis at the following sites: 

https://www.gov.uk/guidance/coronavirus-covid-19-information-for-the-public

https://www.nhs.uk/conditions/coronavirus-covid-19

Resources

We have prepared the following resources for our clients: 

• A fact sheet – CLICK HERE
• Sample visitor’s questionnaire – CLICK HERE  
• Household isolation poster – CLICK HERE
• HSE Weekly Digest – CLICK HERE

What is the Risk level? 

As you will know, the UK government has increased the risk level from moderate to high, therefore activating various powers under the Health Protection (Coronavirus) Regulations 2020. The government have moved from the ‘contain’ to the ‘delay’ phase of their coronavirus action planning. 

This requires individuals to stay at home for 7/14  days if they have either a high temperature or a new, continuous cough, following government guidance for self isolation. See the Fact Sheet above for further guidance on self-isolation. 

What resources are available to keep up to date with the spread of the virus?

The government’s webpage of advice on the outbreak is at https://www.gov.uk/guidance/wuhan-novel-coronavirus-information-for-the-public  and is updated daily with the latest statistics and advice.

ACAS has also produced workplace specific guidance, including guidance on social distancing, which sets out the steps employers should be taking, which you can access here.

How can we reduce the risk to our employees?

It is highly advisable for employers to circulate an email/guidance to staff encouraging employees to be extra-vigilant with washing their hands, using and disposing of tissues etc. and the action to be taken if they suspect that they may have contracted the virus. If you have the capacity to do so, it may be worth designating an ‘isolation room’ where an employee who feels ill can go and sit away from other staff and customers before taking any further necessary action. Any employee with symptoms, a new and continuous cough or fever, should be self-isolating and not in work. Please use the fact sheet referred to above.

In light of recent developments, what changes have been implemented with regards Self Isolation and SSP? 

The Government currently advises that anyone who shows symptoms of coronavirus infection, however mild, should self-isolate for seven days. It also advises that whole households should self-isolate for 14 days if one member has been infected. 

The Government has also announced that those with serious health conditions will soon be advised to “largely shield themselves from social contact for around 12 weeks.” It is likely these measures will be announced imminently and will apply to both those with underlaying health conditions and pregnant women. As soon as measures are confirmed, we will update accordingly. 

On 12 March 2020, the Government made the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020. The Regulations now make clear that qualifying employees who isolate themselves on the basis of advice published by Public Health England (or the devolved health authorities) will be entitled to SSP.

The regulations only apply if a person is unable to work because of self-isolation. An employee who works from home should be entitled to be paid their wages.

Where workers are instructed to stay at home by their employer, it is likely they would be entitled to their wages, particularly if they are instructed to work while at home.

Government guidance from 12^th March 2020  is that those self-isolating with minor symptoms should not call their GP or NHS 111, so employees will not be able to provide any documentary evidence for the first seven days of absence. 

Due to another change announced to the SSP rules, but not yet confirmed by legislation, SSP will be payable from the first day of absence without the need for waiting days. This change appears to be temporary and will only apply during the coronavirus epidemic, after which sick pay may revert to the previous position, which is that it is only paid from the fourth day of absence.

As far as those on zero hours are concerned, if you do not have any work available for them you will have to advise them of that. If you communicate this information as early as possible, they can at least plan for the situation. Whatever can be done to assist them, i.e. keeping in contact with them and advising when work will be available again, will probably be much appreciated. There are calls for the Government to do more regarding those on zero hours so the position could change. 

Those not eligible for SSP can now more easily claim for Universal Credit or Contributory Employment and Support Allowance.

Reimbursement of SSP 

The Chancellor of the Exchequer, also announced that the government will reimburse small employers (with less than 250 employees as of 28^th February 2020) any statutory sick pay they pay to eligible employees who have been absent due to Covid-19 for the first 14 days of sickness. Employers should maintain records of staff absence but, as advised above, not require an employee to provide a fit note. 

The eligibility period for this scheme will commence from the day on which the regulations to self-isolators came into force. 

This is, presumably, a temporary measure to help insulate businesses against the impact of coronavirus.  Existing systems are not designed to facilitate such employer refunds for SSP and so the government will work with employers over the coming months to allow for such reimbursement. As of today we have no further information on how this process will work and are awaiting further guidance.

If an employee is not sick but is in quarantine or self-isolation, do we have to pay them sick pay? 

See above for the latest guidance on Statuary Sick Pay. If you have a sick pay scheme in addition to the right to statutory sick pay then payments will depend on the specific rules of that scheme, which may differ from those for statutory sick pay. 

Sick pay policies will include a requirement for the employee to obtain a ‘fit note’ from a doctor. An employee who is following official guidance to self-isolate and who has flu-like symptoms may have difficulty obtaining a fit note as current advice is to not visit or call your GP or NHS 111. Employers should therefore consider making exceptions to their usual sick pay policies as to the evidence required. This is in line with updated government guidance that employers should be more flexible in relation to the evidence they require.

An employer can always choose to pay sick pay even if it is not legally obliged to do so. If you do decide to do so, great care must be taken in order to avoid possible discrimination between employees. Problems may arise if such ex gratia payments are made but the volume of claims makes it unaffordable to continue that policy.

As further guidance from the Government or courts becomes available, we will update you. 

What happens if an employee has to stay home to look after school aged children? 

At the moment employees are entitled to take a reasonable amount of emergency unpaid time off work to take care of their children if there is unexpected disruption in their normal care arrangements – the closure of a nursery or school as a result of the coronavirus would naturally qualify as an emergency. However, this is not time off to look after the child, but to make alternative arrangements for their care instead. This could prove tricky as there are not likely to be other childcare options available.

Some  employers are trying to be more flexible in these circumstances where they can and will allow employees to take holiday at short notice or, if appropriate, to work from home or make the time up. 

Currently employees staying at home to look after children does not amount to self-isolation with regards entitlement to Statutory Sick Pay.  

What if employees do not want to come to work because of the virus?

Some employees may be worried about catching coronavirus and therefore unwilling to come into work. If this is the case you should listen carefully to the concerns of your employees and, if possible, offer flexible working arrangements such as home-working. Employees can also request time off as holiday or unpaid leave but there is no obligation on you to agree to this. If an employee refuses to attend work without good cause, they will not be entitled to any sick pay and you are entitled to take appropriate disciplinary action.  What is appropriate may depend on the specific circumstances.

Can we refuse to allow an employee to work because we suspect that they may have contracted the virus?

If an employee is not actually sick but you have reasonable grounds for suspecting that they may have contracted the virus, then you may be justified in refusing to allow them to attend work in order to prevent them from passing the virus to other employees and to customers. If you tell them not to come to work, you should continue to pay them in the usual way. Your decision must be reasonable. Please note in particular that any blanket policy of refusing to allow persons originally from a particular area to work may amount to racial discrimination.

What if there is not enough work and/or the workplace has to close as a result of the virus?

The rapidly changing situation means that it is now prudent for all employers to review (or introduce) your disaster recovery plan to ensure that you have a plan to deal with the situation if your workplace has to close temporarily. 

The following should be considered: 

• Lay off/short time working – if there is no work employees would be placed on lay off or short time working, please refer to lay off clause in the contract;
• Ask employees to use holiday entitlement – if they will not agree to take annual leave it’s possible to force them to do so provided you give them 2x the notice of the period of leave we are requesting them to take;
• Variable hours staff – reduce their hours/stop giving them any hours if permitted under the terms of their contract.
• Unpaid leave – some employers have agreed with staff that they take a period of unpaid leave for a short period of time until work increase again.

If the workplace has to close temporarily you might also want to think contingency plans. For example, if any part of the service can continue while the premises are closed, how would staff communicate with you and with each other to keep your business operating as normally as possible? Can any roles be carried out from home in order to maintain continuity. This may not be possible, but clients are considering all eventualities.

We strongly advise keeping staff fully aware of the position as early as possible and throughout any closure period. If you do need to make lay offs or close the business, please contact us to discuss all of the options before taking any action. 

You may have business continuity insurance that may pay out if your business suffers loss as a result of the virus. If so, you need to check exactly what is covered by the insurance.

What if an employee needs time off work to look after someone with the virus?

Employees are entitled to time off work to help someone who depends on them in an unexpected event or emergency. The spread of the virus might result in such a situation; for instance if an employee needs to help a child or other dependent who is sick, or who needs to go into isolation or hospital.

As mentioned above, new regulations introduced by the chancellor Rishi Sunak state that statutory sick pay (SSP) will be temporarily extended to cover people caring for those within the same household who display coronavirus symptoms and have been told to self isolate. This would make provision for, for example, carers of children or elderly relatives who live with the absent employee. 

Note this extension of SSP is to cover those caring for sick or self-isolating dependants and, as stated above, would not currently cover parents/carers having to stay home with school aged children due to school closures.