Coronavirus: FAQs and tips for employers

On 30 January 2020 coronavirus (COVID -19) was declared a global health emergency of international concern by the World Health Organisation.  The risk in the UK of coronavirus has moved from low to moderate, with approximately 87 cases now confirmed within the UK (as at 5th March).  As the outbreak continues to escalate employers are concerned about the disruption it will cause to their business as well as the risk to their workforce. 

The purpose of this article is to highlight the employment issues that may arise and to provide some guidance on how to deal with them. 

The government publishes daily updates with the latest statistics and advice and Acas has also produced useful workplace specific guidance on handling coronavirus at work. 

Health and Safety

Employers have a duty of care to protect the health and safety of their workforce, and as a result they should take precautions now in order to reduce the impact that this virus could have on their workforce.  An important initial precaution is for employers to educate their employees on the latest government health guidance and the steps they can take to limit their exposure to and the spreading of the virus.  Furthermore, employers should be carrying out risk assessments and updating these regularly as the situation changes.

How can employers reduce the risk to their employees?

Acas has published advice for employers which includes steps that employers can take to reduce the risk to their employees.  The guidance includes the following:

keep everyone updated on actions being taken to reduce risks of exposure in the workplace.  This can be done by sending out  emails/guidance at regular intervals or as and when the need arises;

make sure everyone's contact numbers and emergency contact details are up to date.  Make staff aware of how they will be contacted when there is a need to implement further precautionary or emergency measures;

make sure managers know how to spot symptoms of coronavirus and are clear on any relevant procedures, for example sickness reporting and sick pay in case someone in the workplace develops the virus. Managers should also familiarise themselves with the NHS guidance which can be found here;

make sure there are clean places to wash hands with hot water and soap, and encourage everyone to wash their hands regularly.  Basic hygiene is crucial so if it helps, employers should consider putting up signs or sending emails to remind staff of these simple rules;

        •   give out hand sanitisers and tissues to staff, and encourage them to use them;

        •   carry out more cleaning at work and encourage employees to keep their surrounding work area clean and disinfected;

        •   consider if protective face masks might help for people working in particularly vulnerable situations
             i.e. those working closely with the public;

        •   if possible, designate an ‘isolation room’ where an employee who starts to feel the symptoms of the virus can go and
            sit away from the rest of the workforce. The current NHS guidance is to contact NHS 111 and for the unwell employee
            to remain at least 2 metres away from other people. This NHS guidance may change though so it is always best to check
            it regularly; and

        •   consider whether any planned travel to affected areas is essential.

Do employers need to pay employees for absences linked to the virus?

This will depend on the reason why the employee is absent. 

If the employee is off sick due to being unwell with coronavirus, then the employer’s normal sick pay policies and procedures will continue to apply. 

If the employee is not sick but is in quarantine or self-isolation there is no legal right to sick pay in these circumstances. Employees who have visited the ‘high risk areas’ identified in government advice must stay at home and self-quarantine for 14 days.  Acas guidance suggests that these employees should be offered the opportunity to work from home and should continue to be paid as normal. If it is not possible to work from home, then Acas guidance suggests that employers should treat the absence as paid sick leave or as holiday. However, employers should be prepared to deal with complaints from disgruntled employees who raise objections to using up holiday or being paid sick pay, when they are neither on holiday or unwell.

The government has also stated that it would expect employees who are required to self-quarantine on medical advice to be treated as being on sick leave and that they may be eligible for statutory sick pay.  In these circumstances an employee is only likely to be eligible for SSP on production of a fit note from the GP confirming that the employee needs to self-isolate/quarantine. 

We do not recommend the leave is unpaid leave because it may deter employees from staying in quarantine and coming into work and potentially spreading the virus to the rest of the workforce. 

Employers should exercise extreme caution before using coronavirus related absence to trigger warnings under absence management policies.

What can employers do if employees do not want to come to work?

Some employees may be worried about catching coronavirus and therefore reluctant to attend the workplace. Their concerns may relate to their own health issues or that of vulnerable family members.  If this is the case employers should listen carefully to the concerns of those employees. They should also reassure employees and highlight the steps that have been taken to reduce the risk.  Employers should consider alternative working arrangements such as homeworking or commuting outside of rush hour. Employees can also request time off as holiday or unpaid leave but there is no obligation on employers to agree to this. If employees refuse to attend work employers are entitled to take disciplinary action for failure to follow a reasonable and lawful management instruction. 

Can employers enforce homeworking? 

Employers should check each employee's contract of employment to see if it contains an express, contractual right to require the employee to stay at home. However, even where this right does not exist, it is unlikely to be a breach of duty to insist that an employee works from home providing of course that there are legitimate, non-discriminatory grounds for concern. If employees are able to work from home then they will be paid as normal.

Employees who are asked by their employers to stay away from the workplace, and who cannot work from home, will have a right to receive their usual pay.

If there is no express, contractual right to require employees to stay at home and they cannot work from home it may be technically possible for the employer to suspend the employee on health and safety grounds on full pay.  It is unlikely to be a breach of implied duties of the employment contract to suspend an employee on full pay, provided the matter is dealt with appropriately and sensitively.

Do employers have to pay employees if the decision is made to close the office?

Currently it is unlikely that employers will need to close the office.  However, it is prudent to plan in case there becomes a need to close temporarily.  Such plans should involve how the closure will be communicated to employees at short notice and what flexible work arrangements can be put into place.  Unless provided for in employment contracts, employers will still need to pay staff during the time the office is closed.

Current Acas guidance states that if someone with coronavirus comes to work, you do not necessarily have to close the office. Local Public Health will contact you to perform a risk assessment.

What should employers do if employees require time off to look after someone? 

This situation may arise if employees:

•   have children they need to look after or arrange childcare for because their school has closed because of the coronavirus; or

•   to help their child or another dependant if they are sick, or need to go into isolation or hospital because of coronavirus.

If any of the above occurs then employees have a statutory entitlement to unpaid time off work to help someone who depends on them (a 'dependant') in an unexpected event or emergency. Some employers might have a policy in place which provides that this time off is paid.
 
The amount of time off the employee takes to look after someone must be reasonable for the situation.  For example, employers should allow one or two days off work to make arrangements for childcare, and if more time is needed, employees should be offered the options of booking holiday or taking the time off as unpaid.

Should employers postpone business travel to affected areas?

Before continuing with business travel abroad employers should carry out a risk assessment and review the current arrangements after checking the most up-to-date government guidance. An employer should consider postponing any non-essential business travel and put in place alternatives to travel such as conducting meetings via Skype or video link. 

Can employers stop employees from travelling on holiday to at risk countries?

If employees have already booked a holiday to a known affected area, and they still want to travel, remind them of the risks involved and the employer’s obligation to protect the health and safety of its employees.  These employees should be instructed to keep their employer informed of their plans and anything which puts them at an increased risk of contracting coronavirus.

Other potential options available to employers if employees are determined to take their pre-booked holiday to an infected area are:

•   issuing a counter-notice to the holiday request (if that is possible in terms of the contract and the timing of
    the scheduled leave);

•   or making it clear that they will have to go into quarantine on their return from holiday and for this period either
    work from home or if this is not possible take unpaid leave or use some of their remaining holiday entitlement
    to cover the absence.

Employers should ensure that the discussions are communicated to the employee in writing before they travel so that the employee is fully aware of the position on return from their holiday and the implications for failing to follow their employer’s instructions.

Do employers need to pay employees who are prevented from returning from abroad?

Employers are only obliged to pay employees when they are working or on authorised leave such as holiday or sickness absence. If an employee is unable to return to work after their holiday leave has finished, even if they are stuck abroad through no fault of their own, they are not entitled to be paid for their period of absence.  In this situation employers can consider other options such as asking their employees to work remotely (and to pay them), take additional annual leave or even take unpaid leave.  

The situation is different if employees have travelled abroad for work as in these circumstances it would be reasonable for employers to continue to pay them whilst they are away and cover their reasonable costs and expenses in the usual way. 

It is important to ensure that whatever is decided is consistent for everyone to ensure there is no discrimination, the obvious one here being race.  An employer should ensure that it abides by its Equality and Diversity policy at all times.

Can an employer lay- off employees if it becomes necessary?

A lay-off is where employees are not provided with work by their employer and the situation is expected to be temporary. Short-time working occurs when employees are laid off for a number of contractual days each week, or for a number of hours during a working day.

Employers can lay someone off without pay where there is an express contractual right. Alternatively, there may be an agreement covering lay-offs between the organisation and the union, or a national agreement for the industry which the employer follows. These agreements have contractual force if they are in the employee's contract of employment.

Both employer and employee may agree to alter the terms of the contract so that the lay-off is by mutual agreement.

When an employee is laid off without pay, they might be entitled to a statutory guarantee payment from the employer, limited to a maximum of five days in any period of three months.

As a result of the many uncertainties and the extent of the possible damage coronavirus could cause in the long term employers should always consider alternatives measures before implementing drastic measures such as lay-off and/or redundancies. 

Alternatives measures may include a hiring freeze, reducing agency/temporary work, freezing/stopping paid overtime, asking employees to work fewer hours, offering employees sabbaticals or secondments or asking employees to take unpaid leave.  All of these measures will trigger legal issues and we recommend advice is sought before implementing them.  

For information on coronavirus please click on the following:

       •    coronavirus on NHS.UK

       •    latest coronavirus information and advice on GOV.UK

 

The above article is a summary of the main concerns employers have raised with about how coronavirus could disrupt their business and affect their workforce.  If you wish to discuss any of the above in more detail then please do not hesitate to email Reyhana Koser or call her on 01384 445885.