COVID-19 is a disease which is caused by the coronavirus. It was first identified in Wuhan City, China, in December 2019. By 11 March 2020, the World Health Organization (WHO) declared the outbreak a global pandemic owing to the alarming levels of the spread of the virus coupled with the increased mortality rate in vulnerable groups in society, such as older people, those with a weakened immune system or long-term conditions like cancer and chronic lung disease. Many counties, including the UK, have introduced widespread public health measures to combat the spread of the virus and alleviate the pressure on their respective health systems.
There has been a dramatic shift in advice from the UK government. As of 16 March 2020, the medical advice in the UK is that the entire household of anyone who develops a new cough OR a high temperature should self-isolate at home for 14 days. Boris Johnson has projected that up to a fifth of workers could be off sick at any one time, with much more absent from the workplace in self-isolation or caring for dependants due to illness or school closures. It may be that this will be the norm for many months to come, given a vaccine is not expected to be available for at least a year. Businesses will therefore suffer staff shortages and face unprecedented challenges in the daily running of their business and profitability in the short and long term.
What action should an employer take?
Employers have a legal duty to ensure the health, safety and welfare of their employees, customers, suppliers and members of the public. Employers should minimise the risks posed by the coronavirus to these groups as far as reasonably possible by carrying risk assessments for all workers, specifically those at higher risk. Workers should be instructed to follow the government’s self-isolation guidance to reduce the risk of an employee attending the workplace and spreading the virus. If employees attend the workplace when presenting symptoms, they should be sent home to self-isolate.
Employers should:
- regularly update all staff on the actions being taken in the workplace;
- circulate the government’s latest guidance to all staff. Presently, this advice updates daily, and as such, these should be sent daily;
- ensure that there are clean places to wash hands with hot water and soap and encourage everyone to wash their hands regularly;
- contact details of staff’s emergency details should be checked and updated where required;
- provide hand sanitiser and tissues for staff, and encourage them to use them;
- engage in additional cleaning services;
- train managers to spot symptoms of coronavirus and on the procedure that they should follow, e.g. sending someone home from the workplace presenting the symptoms of coronavirus;
- consider allowing vulnerable workers and pregnant workers to work from home where reasonably practicable;
- consider allowing all other staff to work from home where reasonably practicable; and
- consider closing the workplace temporarily if reasonably practical.
Normal pay
If an employer asks an employee to remain at home, then the employee will be entitled to normal pay. This is subject to any layoff provisions contained within the employee’s contract of employment, which might allow the employer to lay off the individual or reduce working hours in certain circumstances, such as a pandemic.
Self-isolation and sick pay
Employees who self-isolate following either medical or government advice must receive Statutory Sick Pay (SSP). Employers should check all employment contracts, as employees might be entitled to enhanced contractual sick pay over and above SSP. Usually, SSP is not available until the fourth day of sickness, but as of 5 March 2020, the government has said that individuals eligible for SSP will be entitled from the first day of absence. This additional entitlement is only relevant to absences connected with Coronavirus. The government has asked employers to use discretion when requesting a fit note where an employee is self-isolating.
Where an employee is well enough to work but has self-isolated following medical advice, SSP will be payable. It is unlikely, however, that they will be entitled to any enhanced contractual sick pay, depending on the terms of their employment contract. Nevertheless, ACAS recommends paying employees their enhanced contractual pay to avoid the risks of employees returning to work (as opposed to self-isolating) over financial concerns and spreading the virus in the workplace.
Employees who choose to self-isolate out of fear of catching the virus are not entitled to SSP or contractual sick pay. Employers should discuss a suitable way forward and consider options such as unpaid leave or allowing the employee to work from home if practical. Employers could consider disciplinary action if no suitable agreement can be reached when an employee is not sick. Caution must be exercised here; the employee may belong to a vulnerable group or request time off to look after dependants.
Dependant care leave and parental leave
Employees have a statutory right to take unpaid dependant care leave. This right will extend to an employee in circumstances where their child’s school closes or they fall sick and so require care. Further, those employees with one year’s continuous service can apply for unpaid parental leave to care for a child under 18, up to a maximum of four weeks a year. Some employment contracts allow for paid dependant care leave, so employers are advised to review the relevant clauses within the contract.
Working from home
The government has requested that employees who are well enough work from home, where practical, to halt the spread of the virus. Employees are entitled to their normal pay if they are working from home. Producing a working-from-home policy and sharing it with all relevant staff members is advisable. It should include information regarding equipment, access to systems, relevant training, health and safety considerations and expectations of both the employer and employee when working from home.
Use of holiday entitlement
If well employees can’t work from home, employers can consider asking those employees to use their holiday entitlement. An employer has the right to close their workplace and instruct employees to take holiday during the closure so long as the employee is given twice as many days’ notice as that to which the closure will be. This is not an attractive option and could lead to loss of morale, especially as staff will lose their entitlement for the rest of the year, and so should only be considered where other flexible options are not appropriate.
Comment
An employer should balance the best interest of its business with its legal duty to ensure the health, safety and welfare at work of their employees, customers, suppliers and members of the public. Employers must ensure that they are aware of the official guidance from the government and take timely, appropriate action to mitigate any risks. Providing staff with regular updates is vital, and employers should communicate any actions taken.
Employers should pay particular attention to those in vulnerable groups. When implementing measures, higher-risk staff members must not be unfairly disadvantaged as this could lead to a discrimination claim. Legal advice should be sought if an employer is unclear whether the action could amount to discrimination.
As the situation develops, employers who have already conducted a thorough coronavirus review of their workplace and are aware of the potential risks and possible solutions will be best placed to limit the business’s harm.
For further advice and information, contact Karen Cole today.
Note: This is not legal advice; it provides information of general interest about current legal issues.