As the number of confirmed cases of the novel coronavirus (COVID-19) (commonly known as Coronavirus) continues to increase, employers are considering the risks to their business and their workforce. Many organisations are concerned not only for their staff, customers, clients and other stakeholders but also the effect that the Coronavirus will have with regard to general disruption and disruption to their supply chain, loss of revenue and the impact on profitability.
The purpose of this article is not to dispense medical advice or guidance on how to handle the Coronavirus if it was to impact your organisation; government and NHS guidance should be followed in this respect. Instead, it is to highlight, in very general terms, the options that employers may choose to adopt if the Coronavirus was to impact them.
Acas has also published useful advice for employers on handling coronavirus at work; the latest Government guidance for employers is being frequently updated as the situation develops. For further business guidance, read our article on the coronavirus and force majeure here.
Health and Safety
Employers are under a duty of care to protect the health and safety of their employees. In order to discharge this duty, employers may limit or ban unnecessary business travel to high risk areas that are known to have the virus. For those employees who travel regularly this may mean amending their duties on a temporary basis or considering alternative ways of discharging their duties remotely using technology instead.
Employers should also educate their employees on the latest government health guidance and steps they can take to limit their risk of exposure and of spreading the virus.
Employers must consider other virus-related risks to their workforce, particularly those considered ‘vulnerable’, such as employees with an impaired immune system or who are pregnant. Risk assessments should be updated or carried out to ensure this is fully thought through and appropriate safeguards to manage the risks are put in place and reviewed. It may be necessary to consider amending duties, or working from home or if that is not possible, suspending them on medical grounds. However suspension would usually need to be on full pay and should be considered as a last resort if their health cannot be safeguarded in any other way.
Employees stuck abroad
Employers are usually only obliged to pay employees when they are working or on authorised leave such as holiday or sickness absence. Therefore, if the employee is abroad on holiday or on sick leave, their usual contractual rights in relation to pay are enforceable. However if employees become stuck abroad and are unable to get back home (for any reason, not just because of the Coronavirus) but nevertheless are able to carry out their work and the employer is happy for them to work remotely, they should continue to get paid. Employers may adopt an agile approach to how and where work can be carried out and each case will need to be decided on a case by case basis. Some employers may already have an agile working policy that would cover this situation that can provide guidance to employees and line managers.
If the employee cannot carry out work whilst abroad and are stuck there through no fault of their own, the situation is not so straightforward. Most employers are unlikely to have existing policies or rules which provide for such circumstances. Assuming there is no policy then a case by case approach will need to be taken.
If the employee travelled abroad for work it would be reasonable for the employer to continue to pay them whilst they are away and cover their reasonable costs and expenses in the usual way. The employer may have an insurance policy they can claim under to cover the employee’s pay and expenses in such circumstances.
If the employee is abroad as a result of their own holiday plans the employer could choose not to pay them in so far as they are not providing their labour and presenting themselves ready and able to work. It is likely that an employer in this situation will offer the choice of further paid annual leave or unpaid leave. The employer could also consider giving notice to the employee to take some further paid annual leave by relying on the leave notice provisions in the Working Time Regulations 1998 and any contractual leave notice provisions. Employers generally have control over when an employee takes their annual leave.
It is important to ensure whatever is decided is consistent for everyone to ensure there can be no argument of unfair or discriminatory treatment.
How can an employer reduce the risks to employees?
Employers who consider that they may have employees who have been exposed to the Coronavirus in the course of their employment should provide up to date government and NHS guidance on a regular basis.
Acas has published advice for employers and employees which includes the following points of good practice:
- keep everyone updated on actions being taken to reduce risks of exposure in the workplace
- make sure everyone's contact numbers and emergency contact details are up to date
- make sure managers know how to spot symptoms of Coronavirus and are clear on any relevant processes, for example sickness reporting and sick pay, and procedures in case someone in the workplace develops the virus
- make sure there are clean places to wash hands with hot water and soap, and encourage everyone to wash their hands regularly
- give out hand sanitisers and tissues to staff, and encourage them to use them
- consider if protective face masks might help for people working in particularly vulnerable situations; and
- avoid as much travel as possible and hold meetings remotely.
The Government is now advising social distancing for everyone, but particularly for those in a vulnerable group. Homeworking is being encouraged for those employees where it is possible.
At the time of writing, the risk level is now considered high. If an employee becomes unwell the current guidance set out is to remain at home and self-isolate for a minimum period of seven days (14 if you live with other people) and to contact NHS 111 only if symptoms worsen. This guidance may change though so it is always best to check. If possible, employers should designate an isolation room for those who start to feel the symptoms of the virus, particularly in environments where the virus may spread easily.
Absence and pay issues
In obvious cases of exposure to the Coronavirus, health professionals and bodies are currently advising that in order to protect colleagues, those considered at risk should self-isolate for 14 days, even if they do not display symptoms. Amendments to the Statutory Sick Pay (General) Regulations 1982 take effect from 13 March 2020, confirming that those who are self-isolating in line with current medical advice will be ‘deemed incapable of work’ under the regulations and so will be entitled to be paid SSP. Government advice is that employers should be flexible in requiring medical evidence as certification of sickness. Those employees with symptoms of coronavirus can obtain an isolation note from NHS 111 online, and those who live with them can get a note from the NHS website.
In his Budget statement on 11 March, the Chancellor of the Exchequer announced that the government will reimburse small and medium-sized businesses (with up to 250 employees) the cost of paying statutory sick pay to those absent due to Coronavirus, for the first 14 days of sickness. It has also been announced that with effect from 13 March there is no longer a requirement for three days of absence (waiting time) before SSP becomes payable. A Coronavirus Bill was published on 19 March to implement these and other emergency measures, including a new right for emergency volunteer leave for up to four weeks. This leave will be unpaid but individuals will be able to apply to a compensation fund for loss of earnings.
SSP is paid in respect of the individual’s ‘qualifying days’, at the rate of £94.25 per week (£95.85 from 6 April 2020), subject to deductions for tax and National Insurance contributions. Only those who are paid an average of £118 per week (£120 from 6 April 2020) over the previous eight weeks will qualify for SSP, and this may include zero hours workers and employees depending on their working pattern. Additional measures were announced in the Budget to assist those who are not eligible for SSP (the self-employed and those earning below the Lower Earnings Limit), to make it easier to claim Universal Credit or Contributory Employment and Support Allowance.
There will be no automatic right for such individuals to be paid contractual sick pay (unless the employment contract provides for that, which is unlikely). However, it would be best practice to pay employees to ensure they do not come into work and risk spreading the virus to the rest of the workforce and any others such as clients, customers, stakeholders and members of the public.
If the employee is not sick and is able to work but the employer has told them they are not to come into work then they are entitled to be paid. This would apply where the employer has requested the employee stay away from the workplace, perhaps because they have recently travelled from a high risk area.
An employee can take reasonable emergency time off to arrange care for someone who is a dependent and is sick (including if they have been diagnosed with the Coronavirus). Absent a contractual right or policy stating otherwise, there is no legal right for the employee to be paid for this absence and the length of permissible absence will depend on what is reasonable in the circumstances.
Some employees may feel they do not want to go to work through fear of the Coronavirus. Employers should listen to the employee's concerns and try and address these concerns as far as possible. Ultimately, if no agreement can be reached over alternative ways of working e.g. home working or amending duties, the employer may take disciplinary action for any failure to turn up for work for this reason. Again in considering this option all of the circumstances will be relevant including whether the employee is pregnant or disabled. Pregnant employees have the right to have workplace adjustments to ensure the safety of themselves and their unborn child. Currently there is little medical advice which might indicate how and whether Coronavirus has a particular effect on pregnant women and their unborn children but it would be prudent for employers to be sympathetic to concerns of pregnant staff and allow home working where practicable.
The Health Protection (Coronavirus) Regulations 2020
This newly formed legislation, arising out of the Public Health (Control of Disease) Act 1984, allows for the imposition of proportionate restrictions (including screening and isolation) where there are reasonable grounds to suspect that the individual is, or may be, contaminated with the Coronavirus and for the compulsory detention of individuals to enforce these restrictions.
These restrictions only apply in relation to those either suspected of being infected or contaminated with Coronavirus, or to those who have recently travelled from an ‘infected area’. Those placed under compulsory detention under these statutory measures will be entitled to receive statutory sick pay, but contractual pay will depend on the terms of the individual’s contract.
Working from home
Employers are being encouraged to allow employees to work from home where possible and this is strongly recommended for those employees who fall within one of the vulnerable categories.
Requiring an employee in a vulnerable category to come into work is likely to be regarded as a breach of trust and confidence and of the employer’s implied duty of care. If such individuals are unable to carry out their role from home, and there is no alternative work available, they will be entitled to SSP as a result of amendments to the SSP Regulations to cover deemed incapacity. Employers may need to consider suspending on full pay (as mentioned above). Bear in mind that some employees in a vulnerable category may have a disability and a failure to continue to pay them may give rise to a discrimination claim. It is expected that the Government will introduce further measures to clarify the position and protect the pay of those unable to work.
Note that employers are under additional duties to protect the health and safety of pregnant employees. If a pregnant employee is unable to work from home due to the nature of their role, and there is no alternative work available for them to do, the employer should consider suspending her on full pay in accordance with provisions of the Management of Health and Safety at Work Regulations 1999.
An employee may decide they want to take some of their holiday entitlement where circumstances arise that would otherwise result in them not being entitled to pay. In such situations an employer may decide to relax the rules when it comes to booking and authorising holiday. Under the Working Time Regulations 1998 an employee should normally give the employer at least twice as much notice as the length of time they want off work. So if they want 5 days holiday they must give the employer 10 calendar days' notice.
Likewise if the employer requests that the employee stays away from the workplace it could consider giving the employee notice to take a period of holiday. The same period of notice is required - twice the length of notice as the amount of annual leave to be taken.
However, if an employee has requested annual leave and the employer wishes to reject such request then it is obliged to give a "counter-notice" refusing the employee's leave request with such counter-notice given at least as many days before the length of leave to be refused. So if a period of 5 days of leave is to be refused then the counter notice must be served at least 5 clear calendar days prior to the start of the leave requested.
A prolonged and widespread outbreak of Coronavirus is likely to result in a significant downturn in certain business sectors, particularly those in the travel, hospitality and entertainment sectors and any businesses whose supply chain is significantly impacted.
In this situation, employers might want to consider making temporary layoffs or introducing short-time working to reduce the amount it has to pay its workers. However, employers can only impose a period of lay-off or short-time working if they have the ability to do so under the contract of employment, either by an express or implied (through custom and practice) term. Without such a contractual right, employers will need to consult and seek to reach agreement with the affected employees.
Employees who are laid off and who are not receiving any pay are entitled to receive a guarantee payment, currently £29 per day (increasing to £30 from 6 April 2020), for up to a maximum of five days in any three month period. After a period of four or more consecutive weeks, or six or more weeks in a 13 week period, employees who are laid off or on short-time working for less than half of their normal remuneration can trigger a statutory redundancy pay entitlement.
During a period of lay-off or short-time working, employees’ holiday entitlement continues to accrue and holiday can be taken, paid at their usual rate of remuneration.
Risk of discrimination complaints
Employers need to ensure that any decisions that are taken in relation to safeguarding themselves and their employees and wider individuals from the Coronavirus are consistent and fair and do not discriminate against any protected characteristic, the obvious one here being race. Complaints have been made by British Chinese people who have claimed to have been directly and indirectly discriminated against and harassed on grounds of their race and the association of this with outbreak of the Coronavirus. Employers are reminded that such discriminatory treatment is unlawful and it is vital that they take steps to prevent such treatment occurring.
It is advisable that employers have in place an Equality and Diversity policy that expressly forbids discriminatory behaviour and that managers (and preferably employees as well) are trained on what is acceptable and unacceptable behaviour in the workplace and how to manage discrimination issues if they arise. For more information on the Equality and Diversity training that we can offer or if you require assistance with drafting an Equality and Diversity policy, please speak to a member of the Employment Team.
If you would like to discuss the issues raised in this article please contact a member of Birketts Employment Team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at March 2020.