What can we do about employees who are afraid to come to work because of Coronavirus?
With three cases of novel coronavirus ("Covid-19") now confirmed in Northern Ireland, employers are likely to see a rise in employees wanting to work from home for fear of coming into contact with the virus, particularly if they have any respiratory conditions such as asthma.
As a general tip, employers should encourage open dialogue with their staff where concerns can be voiced; this will help businesses assess if concerns are genuine and reasonable. Particular caution should be exercised in relation to high risk employees. In these circumstances, employers should meet with the employee and discuss possible flexible working arrangements such as homeworking.
If employees refuse to attend work due to genuine concerns about contracting Covid-19, you may consider letting employees take unpaid leave or using their annual leave. Ultimately, it is a balance of taking action that will be least disruptive to business needs whilst also trying to maintain good working relationships with employees.
If an employee refuses to attend work, technically this could constitute an unauthorised absence which may be dealt with via disciplinary action. However, we recommend that specific legal advice is sought in this scenario.
Can we make an employee stay at home who has just returned from an affected area?
Employers have a duty to ensure the health and safety of their workforce. Therefore, it is understandable that employers are concerned about employees returning to the workplace after they have visited an affected area. If employers knowingly permit employees who have been advised to self-isolate to come into work, they could be in breach of their health and safety obligations, especially to other high-risk employees.
Employers should check their policies and contracts to see if there are any provisions that lawfully enable them to require employees to stay at home. If employers are making employees stay at home, generally the employees should be paid as normal, unless there is a contractual provision to the contrary or they are declared unfit for work and will instead receive sick pay (see below).
Do employers have to pay employees who are self-isolating?
Employees who can continue working from home
If employees are self-isolating as a precautionary measure, depending on the nature of their role, they may be able to continue working from home. In such instances, employees would continue to receive full pay because they are still fulfilling their duties to their employer.
Employees who cannot work from home and have no
There is no automatic right for employees who are self-isolating and cannot work from home to receive sick pay, unless they are showing symptoms. However, Labour Relations Agency guidance states that if employees have reason to believe that they have been exposed to the virus or have had to go into quarantine, employers should "follow best practice" and treat it as sick leave or agree that the time off will be taken as annual leave.
Employees who develop symptoms
If employees who are self-isolating develop symptoms and become unwell, they will usually be entitled to either company sick pay or statutory sick pay ("SSP") in the usual way.
Employees returning from an affected area
The position in NI remains less clear cut than the position in England in this regard. In England, employees who are not symptomatic but have received notice in writing from Public Health England to self-isolate are entitled to SSP (from day 1 of incapacity) due to the implementation of emergency legislation.
For the time being, employers should consider the practical implications of refusing to pay employees who are in quarantine –namely, it may encourage employees to come into the workplace and risk spreading the virus. The guidance from the LRA referred to above should be taken into account.
Employers should keep a close eye on the emergency legislation being introduced and also on NI specific guidance and/or legislation that may follow.
Can we ask an employee who has a family member who has been diagnosed with, or is suspected to have, Covid-19 not to come in to work?
If the employee has been in close contact with the family member, for example, lives with them, it would be a reasonable request for an employer to ask the employee to self-isolate. However, it is likely in such a scenario, the employee would wish to self-isolate anyway.
In contrast, if an employer simply asks an employee to stay at home because of the relationship between the employee and sick relative, without any reasonable evidence of contact between them, this is unlikely to be an appropriate course of action. This highlights the importance of clear communication with the workforce and also to ensure a consistency in approach to help reduce any claims of alleged discrimination and/or breach of contract.
What information can employers communicate to their workforce if an employee tests positive to coronavirus?
Communicating information about an individual's health will constitute processing of sensitive personal data under the GDPR. In accordance with Article 9 of the GDPR, employers must satisfy an additional lawful basis for processing this personal data.
It is unlikely that one of the additional processing grounds under Article 9 would be appropriate in the circumstances. Therefore, employers will need to ensure that any communication does not actually identify the individual.
At the same time, it is important that employers provide a safe working environment for the rest of the workforce. Notifying other employees in the same location as the infected employee would be necessary step to ensure that those in close contact with the employee can take precautionary measures and get tested for the virus.
Depending on the size of the workforce, it is possible that other employees will be able to work out which employee is suffering from coronavirus without the employee actually identifying them. Nevertheless, it is important from a data protection perspective that the employee’s identity is not divulged by the employer unless the employee has given their explicit consent.
- Keep staff up-to-date with internal policies and protocols in relation to the Coronavirus.
- Ensure clear communication channels with staff members.
- Consider suspending unnecessary business travel overseas and particularly to affected areas.
- Take practical steps to protect against the spread of the virus e.g. increased hand cleaning facilities, office cleaning.
- Consider if any flexible working arrangements could be implemented, particularly as coronavirus is likely to continue to spread throughout Northern Ireland.
- Keep up-to-date with guidance from Public Health NI, the Labour Relations Agency and the government.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.