Dealing with corona virus in the workplace

OVERVIEW

  • The World Health Organisation (WHO) has declared corona virus (more properly called COVID-19) a Public Health Emergency of International Concern to add to two similar declarations for Ebola and polio, which have been classified as such for some time.
  • It is important to be balanced about this declaration given that between 8-12,000 people in the UK died of seasonal flu last year and the death rate of COVID-19 appears to be only slightly higher, although it may be much lower if not all the infections are being reported.
  • The UK government has stated that widespread transmission of the virus is ‘highly likely’ and worst-case scenarios point to up to a fifth of workers being off sick as a result. COVID-19 is a 'notifiable disease'.
  • COVID-19 causes respiratory illness, usually resulting in mild symptoms including runny nose, sore throat, cough and fever. Some individuals experience more severe symptoms and it can lead to pneumonia and breathing difficulties and, in rare cases, death. More susceptible individuals at greater risk of becoming seriously ill include older people, pregnant women and those with pre-existing medical conditions.
  • Official advice for those infected or who believe themselves at risk of infection (because, for example, they’ve returned from an infected country) includes self-isolation – staying at home for 14 days and limiting contact with other people.
  • This guide seeks to answer the questions employers may have about the impact of COVID-19.

RELEVANT LAW

  • In deciding how to respond to COVID-19, employers should have regard to:
    • their duties under health and safety law to protect the health, safety and welfare at work of their workforce, as well as others who may be affected by their operations
    • their common law duty to take reasonable care for the health and safety of their workforce
    • the express and implied terms of contracts of employment and other contracts for the personal performance of work or services, including the implied duty of trust and confidence, and
    • their duty under the Equality Act 2010 not to discriminate against employees/workers with protected characteristics
  • Employers should therefore consider whether their existing arrangements for protecting staff and visitors take account of the risks arising from COVID-19 and they should regularly re-assess those risks as the situation develops or new guidance is issued by the government, Public Health England or the WHO.
  • This would include conducting risk assessments to identify the likelihood of staff contracting COVID-19 whilst at work and appropriate measures to control that risk such as hand sanitisers and reminders of the importance of washing hands. The extent of the risk assessment will vary from employer to employer, based on a variety of factors from public exposure to international travel to the make up of the workforce.

FLEXIBLE WORKING/WORKING FROM HOME

  • For those employees who can, working from home and/or flexibly is an option which employers may want to pursue to limit staff exposure to potential infection.
  • There is currently no obligation to allow staff to work remotely.
  • Employers should consider whether they have a contractual right to require the employee to work flexibly. Employment contracts should be reviewed to assess whether employees can be required to work at home, work at a different location and/or take on different duties.
  • Where there is no flexibility within the contract, employers may need to take proactive steps to change terms and conditions (ideally by agreement with the employee).

ATTENDANCE MANAGEMENT POLICIES

  • Many employers operate attendance management policies which are designed to reduce long and short-term absence by providing that levels of absence which exceed specified thresholds will trigger management action.
  • Such policies may in practice discourage employees who have developed, or are at risk of developing, COVID-19 from staying away from work until they have ceased to pose any risk to their fellow employees or others they may come in contact with.
  • Employers with an attendance management policy should therefore consider whether to specify that a period of absence caused by COVID-19 infection or self-isolation in accordance with government guidance will not be taken into account in deciding whether the threshold(s) at which management action is taken have been reached.
  • The case for making modifications to an attendance management policy will be particularly strong in the case of a disabled employee who has a compromised immune system and/or is at higher risk of contracting severe COVID-19.

WORK-RELATED TRAVEL

  • The WHO recommends that all organisations should assess the benefits and risks relating to upcoming travel plans in the light of the latest information on areas where COVID-19 is spreading. It advises that:
    • employers should avoid sending employees who may be at higher risk of serious illness to areas where the virus is spreading
    • all employees travelling to locations reporting COVID-19 should be briefed by a qualified health professional
  • Where an employee has been, or is due to be, relocated or seconded to a country/area where there is a higher risk of COVID-19 infection, the employer will need to consider whether the relevant assignment is compatible with its duty to safeguard the employee’s health and, if satisfied that the employee can reasonably be required to work in the country/area in question, whether steps should nonetheless be taken to reduce the employee’s risk of contracting the disease.
  • Restricting an employee’s personal travel plans is likely to be difficult to enforce, especially if the country involved is not subject to any travel advisory notice issued by the government.
  • For those employees who choose to travel now to areas where the government advice is that they will have to self-isolate on their return whether they are showing symptoms or not then the employer should discuss this in advance with the employee. If they are able to work from home on their return then this is not likely to be so much of a problem but if they cannot then an employer may considering instructing an employee to take additional holiday at the end of their trip, to cover the period of self-isolation. An employer needs to give double the amount of notice than the holiday itself.

PAY

  • Employees who are off sick with COVID-19, or who self-isolate on medical advice from their doctor or 111, are entitled to be paid, either company sick pay or SSP if they qualify.
  • Statutory sick pay (SSP) rules have been temporarily amended so that the usual 3-day waiting rule is suspended during the currency of the outbreak. 
  • Company sick pay policies may need to be altered to reflect the fact that obtaining a doctor’s certificate may take longer/not be possible due to quarantine restrictions.
  • It is unclear whether an asymptomatic employee who self-isolates will have a contractual entitlement to receive sick pay - it will depend on how the employee’s contract of employment defines the right to sick pay. Under many contracts of employment, an employee has no contractual right to sick pay unless they are incapable of work. (SSP is also payable only in respect of a period of ‘incapacity for work’ - those who self-isolate in accordance with public health guidance on COVID-19 are now deemed incapable of work for the purpose of claiming SSP.) However, in light of their health and safety obligations an employer would do well to relax this requirement if an employee has been advised by a doctor or 111 to self-isolate, otherwise they run the risk that employees will come to work.
  • Where an employer instructs an employee, who would otherwise be capable of work to self-isolate for a specified period, the employee will likely be entitled to receive their normal pay for the duration of the self-isolation.
  • Where an employee doesn’t want to attend work because they’re scared/anxious about the effects of COVID-19, there is no legal obligation to pay the employee. However, other considerations may apply, especially in the case of staff who have underlying health conditions or are for example pregnant. Give due consideration to their concerns, especially in light of your obligation to provide a safe working environment. Consider whether they can work from home or take paid/unpaid leave. Anxiety caused by COVID-19 may in fact render some employees unfit for work and thus entitled to be paid.
  • A Job Retention Scheme has been introduced to try and mitigate the potential for job losses – see here for details and Q&As.

SCHOOL CLOSURES

  • Employees who have caring duties, for example, because a child’s school is closed, will need to take time off.
  • Employers should consider any contractual obligations and should also be aware that there is a statutory right to unpaid leave (s. 57A of the Employment Rights Act 1996).
  • Employees have the right to take a ‘reasonable’ amount of time off work to take ‘necessary’ action to deal with particular situations affecting dependants.
  • An employee must inform their employer as soon as reasonably practicable of the reason for their absence and where they are able to inform their employer in advance of their absence how long they expect to be absent. Typically, this type of leave is intended for short periods.
  • There is no statutory right to be paid during dependant’s leave.

DISCRIMINATION CONSIDERATIONS

  • There may be a number of unforeseen discrimination risks associated with COVID-19.
  • Employers are liable for harassment committed by their employees in the workplace, unless they can show they took all reasonable steps to prevent this type of behaviour.
  • With reports of abuse towards Chinese people, employers should ensure that they emphasise their anti-harassment policies and take swift and appropriate action where any unacceptable behaviour is demonstrated.

SOURCES OF ADVICE