Advice for employers on how to approach coronavirus and related employment issues
As the novel coronavirus Covid-19 continues to spread employers are growing increasingly aware of the direct and indirect impact this may have on their employees and the work place.
Substantial guidance and information is available from websites such as the government's website and ACAS, which detail the precautions employers should consider and what action they it should take if, for example, a member of staff is suspected to have, or is confirmed to have, Covid-19.
This note aims to highlight the main points of consideration for employers. However employers should note that circumstances may vary depending on individual contractual arrangements with employees. Given this is an evolving situation we should all remain alert to further guidance from the government, the World Heath Organisation and Public Health England, as well as updated guidance from ACAS.
What risks does coronavirus represent?
It is reported that Coronavirus is more serious than the common flu in the sense that it has to date demonstrated a higher mortality rate amongst those affected. Particularly at risk are those with a supressed immune system, the elderly and those with conditions such as cancer, chronic lung disease and diabetes. Accordingly, measures adopted in the workplace to respond to Covid-19 may also affect these groups of people.
Commuting to work and time spent in the workplace presents the risk that those who are infected with the virus may pass it on through prolonged close proximity exposure. Separate to the public health risk issues, this risk of exposure and infection is important to employers because they have a duty to ensure, as far as reasonably practicable, the health, safety and welfare at work of their employees and anyone else who may be affected by the employer's business, including customers and other members of the public.
What can employers do to comply with this duty?
The most important factor to bear in mind is communication. Employers are advised to tell their employees what actions and precautions they plan to take in a given set of circumstances and (if relevant) how that will affect the employee.
The risk of infection in the workplace may be reduced if employees can work flexibly, if that suits the particular employer's business operations. Many employees will agree to work flexibly to help maintain business and to protect the health of colleagues. However, compelling flexible working can be more complex. Employers should review their terms and conditions and consider whether, if necessary, they have the contractual right to impose changes to working hours, location of work and duties, without having to obtain the consent of employees or consult with them in advance.
Employers also need to review whether they have the necessary resources to accommodate flexible working, such as laptops, remote secure access to office systems and mobile phones.
Flexible working will not be available for all employees. Many organisations will need to maintain an effective workforce in order that they may maintain their services. If so, employers need to consider public health guidance on ensuring workplaces are cleaned appropriately to limit the risks of the virus spreading at work. This will include providing employees with the facilities to wash their hands regularly either with hot water and soap or with hand sanitisers and tissues.
For some employers, such as those in the care sector, such measures simply reinforce existing practice.
Some employees might feel they do not want to go to work because they are afraid of catching Covid-19, or as an employer you may be particularly concerned about an employee who you consider to be vulnerable. Employers should discuss health concerns with their employees. If the concerns are genuine, for example an employee with an existing chronic lung condition or recently recovering from chemotherapy treatment, employers should aim to protect the health and safety of their employees by offering flexible working where appropriate. If alternative arrangements can not be made but the employee does not want to attend work they may take the time off as holiday or unpaid leave; alternatively their GP may consider they are not fit to attend work and supply a Fit Note. However, in the absence of an agreed arrangement, if an employee refuses to attend work it could result in disciplinary action.
What are the rules on pay?
Employers will need to check their contractual arrangements to consider the specific situation with their staff, but most will fall into the following categories
If the employee is absent from work through sickness then they are entitled to be paid either statutory sick pay (SSP) or contractual sick pay as normal.
If an employee self-isolates because they are given a written notice to stay at home, typically issued by a GP or by NHS 111, then they are deemed to be incapable of work and so are entitled to SSP. As of 5 March, the government has said that, where the individual is entitled to SSP, it will be payable from day one of the absence. This means individuals are now entitled to an additional three days' SSP. Whether they are entitled to contractual sick pay will depend on individual contractual arrangements.
On the other hand if somebody chooses to self-isolate, and/or is not given that written notice, then they are not entitled to SSP. This may lead to employees coming to work because they want to be paid and spreading the virus if they have it. Therefore ACAS recommends in such circumstances it is good practice for employees to be treated as on sick leave and for employers to follow their usual sick pay policy or agree for the time to be taken as holiday.
If the employee is fit but asked by the employer not to come to work and to remain at home, the employer will be contractually obliged to pay the employee as normal, unless the terms of the employee's contract allow for the employer to lay them off and the circumstances warrant it. Lay off provisions may apply where there is a drop off in trade as the economic fall out of the virus impacts more widely.
Employers will need to be flexible with their sickness reporting procedures. For instance, if staff are in quarantine, they will be unable to visit a doctor to obtain a Fit Note and it may take some time for written notices to be completed. For this reason employers should consider what, if any other evidence, they will need for sickness absence purposes. For example, this could be advice from services such as NHS 111 or a combination of advice from government organisations (such as the Foreign and Commonwealth Office) and evidence of travel to highlighted areas (e.g., hotel and restaurant receipts showing they were in a location requiring them to go into quarantine).
Time off to look after a dependent and similar rights
Employees are entitled to time off in an emergency without pay to look after a dependent. This statutory right may apply if an employee needs time off to care for children when their school closes down, or to care for a dependent who is sick or who needs to go to hospital or to be quarantined.
Some employers may enhance the statutory time-off entitlements with their own policy, including additional pay. Those policies will need to be complied with.
Other statutory rights and contractual benefits may be relevant, such as Parental Leave although the relevant formal process, including notice provisions, may not fit well with the urgent nature of responding to an outbreak of Covid-19.
Above all, an employer always has discretion to enhance any entitlements and relax any formalities in its usual procedures to help maintain flexibility in its response to any outbreak. Where those affected may have a disability then the employer must always bear in mind its obligations in relation to reasonable adjustments.
Employers will also have picked up some of the reports in the press around the way in which certain nationalities have been targeted due to the location of the initial outbreak or localised exclusion areas. Whilst this has been focussed on those of Chinese descent, high risk areas now include wider Asia, North Italy and Iran. In addition, it is to be anticipated that in-work issues will continue to arise, and potentially escalate, because a colleague may have a common cold. Such issues must be dealt with by an employer as part of its normal processes to protect employees who may be a target and to manage conduct and behaviour of those perpetrating such acts.
Although the UK has not, at the time of writing, started to restrict public gatherings it is worth noting that other European countries have started to ban larger gatherings in an effort to limit the spread of the virus.
Employers will need to keep an eye on developments and consider the impact this might have on certain planned events and whether travel to events both nationally and internationally is advisable. This may affect staff social events, client events and also impact on industry events that are planned to take place this year.
In addition, employers need to plan for the expected impact on their business operations as customers, clients and service users are also affected by the spread of Covid-19. For some employers that will mean less demand as customers stay away. For others, such as those in the care sector, it will mean increased pressure and demand for support at a time when their ability to meet needs will be impacted by the unavailability of key staff.
As the situation with coronavirus Covid-19 develops, the most useful thing an employer can do is work out what options it has to manage its workforce both in the best interests of maintaining its operations but also in the best interests of the health of staff.
By identifying what options are open to it in terms of flexible working and the resources needed to implement this, an employer will be better prepared to deal with the situation as it develops.
Special attention must be given to those staff who are at increased risk from the effect of coronavirus and thought should be given to how those staff can be protected and supported. However employers will need to be careful not to implement measures which put those employees who are at increased risk (i.e. arising from their existing health issues) at a particular disadvantage as this could amount to discriminatory action.
Above all, communication with employees about what the employer proposes to do, at present or in the future, will be key to reassuring employees. In addition, planning for the effect of coronavirus Covid-19 will be key to reassuring service users that your organisation will still be able to support them.
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.