Latest Advice regarding CoronaVirus
As we are beginning to receive emails from clients asking how to deal with employment law issues raised by the recent COVID-19 (Coronavirus) outbreak, we thought it helpful to send you some general guidance on the issues that this may raise. This is obviously a rapidly developing situation and no one can predict how the outbreak will spread or the number of people who will be affected. Please bear in mind that this is general advice about issues that we think may arise rather than the specific situation of any particular client. Also please note that the government’s advice is changing as the situation develops and links are provided for you to keep up to date with that advice.
This information relates only to England as the legal position may well be different in Scotland, Wales or Northern Ireland as a result of different legislation applying or different action taken by the relevant devolved government.
The government has already formally given notice that the Corona Virus is a serious and imminent threat to health in order to activate various powers under the Health Protection (Coronavirus) Regulations 2020. However, the risk level has been increased by the UK Chief Medical Officers of Health from low to moderate but not yet (at the time of writing) beyond that.
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 at 2pm with the latest statistics and advice.
Acas has also produced workplace specific guidance which sets out the steps employers should be taking, which you can access at here.
How can we reduce the risk to our employees?
It may be sensible 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 and privately call ‘111’ (or 999 if seriously ill) before taking any further necessary action.
Can we require employees to travel to affected areas?
As the virus spreads the chance of an employer wishing to send an employee to an affected area increases. Employers have a duty to protect their staff. Our view is that employers should not require staff to travel to areas to which the government has issued advice (see link) against visiting and only require them to travel to other areas known to be affected in exceptional circumstances. It may also be sensible to minimise international travel generally until the outbreak is over, as an area may be affected and travel and other restrictions introduced after the employees have already travelled there.
If staff are required to travel they should be advised on steps that can be taken to minimize the risk of contracting the virus. Clearly any travel restrictions imposed by the relevant government must be respected. There is obviously a risk that travel restrictions may be imposed or tightened and prevent or delay the employee’s return. Our view is that in such a situation the employer would be obliged to continue to pay the employee until return to the UK is possible and during any subsequent period of quarantine in the UK.
If an employee is not sick but is in quarantine or self-isolation, do we have to pay them sick pay?
The regulations governing statutory sick pay include a provision that deems an employee to be incapable of working by reason of illness and so entitled to statutory sick pay if the employee abstains or is excluded from work in accordance with a request or notice issued in accordance with relevant legislation or is prevented by legislation from working if he or she is known or reasonably suspected to be infected by, or to have been in contact with a case of, a relevant infection.
The 2020 regulations empower Public Health England to issue notice (which would be given by a doctor or by NHS 111) requiring a person suspected of carrying the coronavirus to self-isolate and also give powers for such a person to be forcibly placed in quarantine. A person who has received such a notice or is placed in quarantine under the 2020 regulations is therefore entitled to statutory 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.
If someone chooses to self-isolate without having received such a written notice then they are not entitled to Statutory Sick Pay. We would suggest that if an employee considers self-isolation necessary because they suspect that they might have contracted the coronavirus they should contact NHS111, in which case if their concern is well-founded NHS 111 can issue the relevant notice. Whether such a person might qualify for sick pay under the rules of a contractual sick pay scheme will depend on the rules of that scheme.
An employer can always choose to pay sick pay if it is not legally obliged to do so, but 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.
The Prime Minister announced on 4th March 2020 that for the time being, SSP should be payable from day 1 not the fourth day as is currently the case.
As further guidance from the Government or courts becomes available, we will update you.
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, 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. For example, if someone has returned from an area known to recently have been affected by the virus you could justifiably ask them not to come in to work, despite the general implied obligation on an employer to provide work.
If you tell them not to come to work, you should continue to pay them in the usual way (with a possible exception if they have knowingly put themselves at risk – see the following paragraph). 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 employees travel to a country to which they have been advised not to travel?
If employees have chosen to travel to an area against Government advice (see link above to the Government’s advice page) and then return to work within 14 days from leaving that area then there may be a case for refusing to allow them to return to work until the relevant quarantine period has expired. If you do so, you may be able to justify not paying them during the period for which you decline to allow them to work.
However, there is a general implied obligation on employers to provide work. We are not aware of any court cases on this point, and there is nothing to support such action in the advice that has so far been offered by ACAS or the Government. It would be best to deal with this if and when it happens as it is to be hoped that there will be more clarity around such issues as the situation develops.
What if such employees subsequently test positive for the virus? Can they claim sick pay?
So far as contractual sick pay schemes are concerned, whether someone was entitled to be paid would depend on the wording of the relevant sick pay scheme.
With regards to SSP there is nothing currently within the regulations which enables employers to refuse to pay SSP on the grounds that the employee was responsible/culpable for becoming unwell. Provided they meet the usual eligibility criteria then our view would be that they should be paid SSP in the usual manner.
What if an employee or another person visiting the workplace has tested positive for the virus?
This does not necessarily mean that the workplace has to close. The local Public Health England health protection team will get in contact with you to discuss the case. It will wish to identify people who have been in contact with the affected person and to carry out a risk assessment, after which it will advise on any actions or precautions you must take.
What if the workplace has to close as a result of the virus?
At present the risk of you having to close the workplace still seems remote. However, it would still be sensible for you 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. For instance, how would staff communicate with you and with each other to keep your business operating as normally as possible?
The plan could provide for increased home working (where possible) in order to maintain continuity.
If it is not possible to continue the business without the workplace you might wish to lay off staff or put them on short time working. Unless the contracts of employment or other agreements allow for this, you will still need to pay your employees during this time. If you think that you may need to do this, please discuss the position with us before taking action. We strongly advise keeping staff fully aware of the position as early as possible and throughout any closure period.
Do you 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 has children they need to look after because their school has closed because of the virus, or needs to help a child or other dependant who is sick, or who needs to go into isolation or hospital.
The employee has no statutory right to pay for such time off, but some employers might offer pay depending on the terms of the relevant contract of employment or workplace policy.
The amount of time off an employee takes to look after a dependant must be reasonable for the situation.
What if economic problems caused by the virus mean that there is not enough work for all employees?
It is possible that your business may be affected indirectly by the virus; for instance, if you are unable to obtain materials or components from suppliers in an affected area, or if customers in an affected area are forced to suspend operations and stop purchases until normal operations can resume. You may need to consider short time working and lay-offs. If so, please see our comment above regarding lay offs and short time working and contact us to discuss the position further before taking action.
We hope that this advice is helpful, but please let us know if you have any other questions or would like us to advise on a specific situation.