DAC Beachcroft is receiving an increasing number of client requests on Covid-19 issues. With the NHS, a number of leading private healthcare providers and most of the leading insurers as clients (including in relation to Covid-19), we are particularly well placed to advise on the appropriate measures in relation to, and possible consequences of, Covid-19. The situation is fast developing, and there are already instances of organisations closing their offices, and reporting impact on service delivery and/or profits.
Government guidance for the general public, including advice on self-quarantine after travel to affected areas, is being updated daily. Public Health England has also recently published specific guidance for healthcare providers which impose more stringent requirements for healthcare workers with relevant travel, healthcare or household contact history.
Covid-19 presents our health sector clients with particular challenges around staff, delivery of clinical services (both in Coronavirus Priority Assessment Services and more widely), supply chain and contingency planning. This briefing note is directed at Chief Executives, Executive Directors and HR / Operations Directors of NHS bodies and private healthcare providers, and sets out some of our most frequently asked questions. The answers have been kept to a very brief overview, so please use the contact details provided below, or approach any of your usual DAC Beachcroft contacts should you have specific questions.
Dealing with a suspected case within your organisation
Can I ask staff to remain at home following travel to or via a particular country?
Employers have a duty to protect the health and safety of their employees and to provide a safe place to work. It is important to: monitor and highlight to employees the Government guidance on "lockdown" countries; to monitor and highlight to healthcare workers the more stringent guidance published by Public Health England; and to take a risk-based and proportionate response to those who have travelled to those countries or have been in close contact with those who have or, in the case of healthcare workers, those who have been in a healthcare setting in prescribed countries. In order to protect the rest of their workforce, and patients, some healthcare providers may wish to go beyond the Government / Public Health England guidance in some cases and ask those returning from other affected areas to remain at home too. Other than in exceptional cases, and as long as it is paid and not done on a discriminatory basis, this is unlikely to count as a breach of the employee's contract.
In what other circumstances do I need to ask healthcare workers to remain at home?
In addition to the Government's advice to the general public irrespective of occupation, Public Health England has issued additional guidance for healthcare workers (those who work in a healthcare setting (NHS or private sector) who may come into contact with patients, including clinical administration staff and healthcare workers where depletion of workforce as a result of a symptomatic case attending work would pose significant operational issues e.g. laboratory professionals). Public Health England has directed that asymptomatic healthcare workers should self-isolate not only following travel to "lockdown" countries but also following contact with a confirmed case in any country, following exposure to healthcare settings in prescribed countries and following contact with a confirmed case in certain circumstances.
What if an employee refuses to attend the workplace because of fears of infection?
You should offer reassurance and advise them where to find further support. It may be possible to allow employees who wish to do so to work from home or to take holiday or unpaid leave. In particular, more flexibility may be required for employees who are pregnant or otherwise at high risk for medical reasons. However, you should reserve the right to require attendance at work on short notice, making it clear that disciplinary action could be taken if a refusal to attend work is unreasonable.
What pay are employees entitled to?
This depends on a number of factors such as whether the person is displaying symptoms (in which case absence can be treated as sick leave) or whether they are fit to work but are being asked to stay at home because of Government medical advice or preference of the organisation. If an employee can work from home, they should be paid as normal but the situation becomes more complicated where they cannot perform their usual role at home. The Government advice is that employees staying at home because of medical advice should receive any statutory sick pay (SSP) due to them. The Government announced on 4 March that emergency measures were being taken so that SSP will now be due from the first day off work, rather than the fourth day (effectively removing the 3 day waiting period for SSP). The concern is that if an employee receives no sick pay, they may try to come into work or work elsewhere which poses a risk to the spread of the virus, to the general public and a risk to patients, many of who may be particularly vulnerable to severe or even fatal consequences as a result of contracting Covid-19. If s/he turns up for work and is turned away s/he can say s/he has fulfilled his/her part of the wage/work bargain so should be paid. Acas have also advised that if the employer offers contractual sick pay it is good practice to pay this. Employing healthcare providers therefore need to consider the wider health and employee relations implications of what to pay in these circumstances, particularly in view of the Government's advice.
Employers will need to keep their approach to payment under review in case the situation escalates.
Is there any guidance for clinicians on dealing with coronavirus (Covid-19)?
NHS England has published information designed to help clinicians – doctors, nurses, dentists, opticians and other healthcare colleagues – deal with coronavirus. The greatest pressure points within the acute sector remain emergency departments through winter pressures, and the overlay of managing infection control risks arising from Covid-19 remains a central point for patient and staff safety. The NHS England website includes letters to the NHS from the Chief Medical Officer for England, the Director of National Infection Service, Public Health England and the National Medical Director, NHS England and NHS Improvement. The CQC have flagged the risks posed by operational challenges such as corridor waiting in ED areas, and providers need to continue to manage peak flow pressures with these additional risks in mind.
The NHS Staff Council has jointly agreed a statement on good partnership working and issues to consider when developing local plans to combat Covid-19.
What else should I consider?
Minimise disease transmission – Consider restricting non-essential travel to high risk areas and increase the use of video conferencing to avoid face to face contact. Any travel to overseas meetings or conferences should be subject to a full risk assessment. Further consideration should be given to restricting visitors such as suppliers to the workplace who have recently travelled to countries which have experienced a virus outbreak.
In the workplace, audit hygiene facilities and consider enhancing cleaning services. Educate staff on symptoms to look out for, and remind them about frequent hand washing and maintaining good cough and sneeze etiquette.
Be aware of discrimination - There have been reports of racial abuse in connection with the outbreak. It may be appropriate to remind people about their obligations to treat people with respect and your Anti-bullying and Harassment policy. Any policy not to attend work should be related to potential exposure to the virus and should apply to everyone regardless of nationality or ethnicity.
Develop a contingency plan - The plan should include liaising with landlords as to their policies (in the event of a building needing to be vacated), facilitating remote working and strategies which deal with possible scenarios such as a reduction in business or staff shortages. Employers may have to consider temporary solutions such as voluntary leave where employees could opt to take paid or unpaid leave, or in extreme cases options such as redundancies or lay-offs.
Am I liable under a specific contract?
This will depend on the terms of the contract.
Where the NHS Standard Contract has been used, an Event of Force Majeure is defined as "an event or circumstance which is beyond the reasonable control of the Party claiming relief under GC28 (Force Majeure), including war, civil war, armed conflict or terrorism, strikes or lock outs, riot, fire, flood or earthquake, and which directly causes that Party to be unable to comply with all or a material part of its obligations under this Contract in relation to any Service." We would not expect that Covid-19 is interpreted as an Event of Force Majeure.
When considering other contracts, you will particularly want to review the force majeure provisions and consider whether there is reference to terms such as disease" and "epidemic" which will be helpful. Failing that, phrases such as "act of God", or "supervening illegality" (such as inability to move due to a lock down) will assist, but as ever the devil is in the detail and specific facts.
Head contractors will want to consider their supply chains and the terms of their sub-contracts. The NHS Standard Contract for clinical services flows down the Event of Force Majeure definition. Head contractors will want to pay particular attention to situations where the definition in a head contract and sub-contracts do not match as obligations may continue to exist with the commissioner, but be capable of termination by sub-contractor leaving the head contractor exposed to additional risk.
Absent force majeure, parties may seek to rely on frustration of the contract. Whilst any instance will be fact specific, proving frustration is notoriously difficult, and examples where contracts were held not to be frustrated include where the event should have been foreseen (arguably given previous outbreaks), and where an alternative method of performance is possible. That said, cancellation of an expected event (as may be the case for conferences or medical conventions) has in the past successfully been used as a reason to argue that a contract has been frustrated. In respect of medical research, healthcare providers should check funding arrangements if the timetable for the delivery of research is likely to be impacted by Covid-19.
What if I am organising a conference or medical convention? Should I cancel it?
There have been plenty of examples of events outside the United Kingdom being delayed or cancelled. Liability can arise for an arranging organisation under tortious principles at common law and / or statute if an outbreak is traced to an event arranged by that organisation and, broadly, the organisation fails to exercise the appropriate duty of care. Clearly, context will be extremely important – first and foremost being an understanding of likely attendees. As things stand at the date of this Bulletin, in most cases it is difficult to see a liability arising for an event held in the United Kingdom.
Do I have commercial insurance cover?
There may be insurance cover available for some of the impacts on business. These are likely to be complex issues and will require specialist consideration of the available insurance policies. Some of the more common areas of concern are set out below.
Travel - where travel has been impacted, a distinction will need to be drawn between travel to destinations where there is FCO advice not to travel and a more general reluctance to travel due to the situation as a whole. Where there is advice not to travel a key factor will be the date on which the warning against travel was made, and when reviewing any travel policy care will need to be taken to consider whether there are any extensions (or exclusions) dealing with "epidemics".
Cancellation / Business Interruption - where an event has been cancelled e.g. a sporting event or conference, there may be event cancellation and/or disruption insurance available. Care will need to be taken in reviewing any exclusions or extensions relating to infectious diseases. It will be difficult to buy new cover now given that Covid-19 will almost certainly be specifically excluded.
Businesses are also likely to have difficulties with supply chain arrangements which may be covered by Contingent Business Interruption cover even where the loss is as a result of a problem with a supplier or customer rather than within the business itself.
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.