The World Health Organisation has reported that the majority of new Coronavirus cases are now outside China. In this note, Shepherd and Wedderburn's employment and immigration team offers guidance for employers on how to deal with absence and how to manage potential workplace closures.
Review and monitor UK Government and Foreign & Commonwealth Office guidance
The UK Government has published guidance for employers and businesses setting out what to do if an individual suspected or confirmed to have Coronavirus has been at work, including guidance to help prevent the spread of the virus. Advice is also available for those returning from affected countries or areas.
The UK Government advice is changing daily, but the primary advice is to self-isolate in order to prevent the spread of the virus. The Government has categorised affected countries as follows (please note, these are correct as on 27 February 2020 but are subject to change):
Category 1: Travellers should immediately self-isolate, even if they are exhibiting no symptoms, and call NHS 111 to inform of recent travel.
Wuhan city and Hubei province (China); Iran; Daegu or Cheongdo (Republic of Korea); and any Italian town under containment
Category 2: Travellers do not need to undertake any special measures, but if they develop symptoms they should self-isolate and call NHS 111.
Cambodia; China; Hong Kong; Italy (north); Japan; Laos; Macau; Malaysia; Myanmar; Republic of Korea; Singapore; Taiwan; Thailand; and Vietnam
Employers should monitor and follow the UK Government's advice, and should look at updating business travel policies as a matter of urgency. For example, employers should consider restricting all travel to Category 1 countries, and only authorising travel to Category 2 countries if there is a critical business requirement to justify visiting. Employers should ask employees who have booked or are planning to book personal travel to monitor UK Government advice and to follow the self-isolation measures.
Should an employer close premises if a member of staff is confirmed as having Coronavirus?
UK Government guidance does not currently recommend closing premises, even where a member of staff or a member of the public confirmed as having Coronavirus has recently been in the workplace. Employers are advised that the local Health Protection Team will contact the employer to discuss the case, identify people who have been in contact with them and advise on any actions or precautions that should be taken.
However, employers have a duty of care to employees, which includes a duty to ensure that they keep their work premises safe. Therefore, if a member of staff is confirmed as having Coronavirus, employers may wish to close their office as a precautionary measure.
Where possible, employers could ask staff to work from home using remote access. Alternatively, it may be possible for staff to work at a different office or site, which is unaffected. If home working is not already set up, employers could look to take steps now to ensure that employees are able to log on at home and that they have adequate facilities to do so. It has been reported that the UK Government may restrict travel on public transport if the virus continues to spread, so this could make it difficult or impossible for people to get to work. Putting a contingency plan in place and making sure that arrangements for home working are in place should minimise disruption.
Can employers require employees to self-isolate?
In line with UK Government advice, employers can ask employees to self-isolate when returning from an affected country. Allowing an employee who should be self-isolating to come to work could lead to a breach of an employer's health and safety duties, for example if the employee passed the virus to another employee who may be more vulnerable to it because of pregnancy or an underlying illness.
Employers could consider suspending an employee who refuses to self-isolate against UK Government advice. Often a contract of employment will state that an employer has the right to suspend an employee. If there is no contractual right to suspend, employers should seek legal advice on the process, to ensure they act lawfully.
What happens with pay?
If an employer decides to close the workplace as a precautionary measure, and staff are unable to work from home, they should be paid as normal as they no longer have the opportunity to attend work.
Employees or workers who are ill will be entitled to statutory sick pay, or any enhanced sick pay offered by the employer. A doctor's sick note is not required for the first seven days of absence. After the first seven days, it is for an employer to specify what an employee has to provide, and often a sick note will be required. This will usually be set out in the contract of employment or sickness absence policy. Employers should consider making exceptions to their policy on sickness absence reporting as the employee may be unable to obtain a sick note if quarantined.
Where an employee is following UK Government advice to self-isolate, either because they or a member of their family has travelled to an affected country and/or is suspected of having the virus, employers may need to be flexible in their approach. These employees may not be sick, so may not be entitled to sick pay. During the period of leave, they will not have a statutory right to pay unless the employer has instructed them not to come into work. However, ACAS guidance is that it is good practice for employers to treat this as sick leave and follow their usual policy on sick pay. If employees are able to work from home, they can be asked to do so and continue to be paid as normal. If employees ask to take annual leave to cover this period then employers should accept such requests unless there is a good reason not to (e.g. if they can work from home and there is a business need to justify refusing the request). Employers should avoid requiring employees to use unused holidays for the self-isolation period, as employees cannot be forced to take annual leave without receiving sufficient notice in advance.
For those who choose to stay away from work without being asked to do so, and who are not sick or asked by their employer to self-isolate, the position is less clear, and those employees may not be entitled to be paid. If the spread of the virus accelerates, then imposing a 'no-pay' position could be overly strict, and affect staff morale. Employers should be understanding but consistent in their approach.
School closures and other emergencies
Some schools in the UK have closed, and a number of schools sent home pupils and teachers who had been on skiing holidays in the Italian Alps over the February half term. Employees have a right to take unpaid time off to deal with an unexpected emergency affecting a dependent. A school closure will fall into this category and affected employees have a right to unpaid time off, provided they comply with the notification procedures. Alternatively, they may be able to make up the time later.
The purpose of the regulations for "time off to care for a dependent" is to provide breathing space to allow working parents to deal with an 'emergency'. If a school closure is prolonged, arguably, it stops being an emergency and the onus is on the employee to make alternative childcare arrangements. However, taking an overly narrow view of what counts as an emergency is likely to be counter-productive.
Licensed Sponsors and absences due to Coronavirus.
The rules and guidance around the management of sponsor licences have been relaxed slightly to allow for the exceptional circumstances surrounding the Coronavirus. The most significant changes are that a sponsor does not need to report any authorised absences relating to Coronavirus and the sponsor does not need to withdraw sponsorship if an employee is absent without pay for more than four weeks if they consider that there are exceptional circumstances resulting from the outbreak.
The Home Office have promised to keep this policy under review and full details can be found on its dedicated webpage.
What is the impact of Coronavirus on Tier 2 workers?
Chinese nationals whose visa is set to expire will have their current visa automatically extended until 31 March 2020. No further action needs to be taken and they can remain in the UK under the current terms of their leave in the UK. This policy has been extended to those non-Chinese nationals who are normally resident in China and who cannot return due to travel restrictions. Non-Chinese nationals in this position must contact the Home Office in order to have their leave extended.
There has also been a concession to allow those in the UK with Tier 2 (Intra-Company Transfer) visa to switch into Tier 2 (General) visa in the UK, however all other suitability and eligibility criteria continue to apply.
To avoid claims of discrimination, unfair detriment and feelings of resentment among staff, employers should make sure they adopt a consistent approach. For example, employers should ask all employees to declare that they have travelled to an affected country, rather than asking only those who might have family in affected areas. Since the outbreak of Coronavirus there have been a number of reports of racist behaviour towards Chinese people, so employers should be mindful of this and aware of the increased risk of discrimination in the workplace.
Employers should ensure that they communicate clearly all policies, practices and arrangements to all employees.
Employers should also consider how information of any confirmed case would be communicated, to ensure this maintains confidentiality and is in line with the employer's privacy notice for GDPR purposes (as data concerning health is 'special category data')
Steps to take now:
- take steps to prevent the spread of the virus by providing hand and surface disinfectant;
- review business travel policies;
- communicate to employees what they should do if they have recently travelled to a Category 1 or Category 2 country;
- carry out a risk assessment for office closure/home working;
- make arrangements for home working if not already in place;
- contact your private health insurers to confirm what approach they will take to confirmed cases; and
- consider any immigration implications in line with Home Office guidance.
For further information, contact a member of our employment and immigration team.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.