作者: Robin B. Jeffcott Alison Heaton
What is Coronavirus (COVID-19)?
Coronavirus (COVID-19) is a virus with an incubation period of 2-14 days. Symptoms include a fever, breathing difficulties and a cough and there is currently no vaccine against COVID-19.
More information about the virus can be found on the NHS website.
How can we reduce the risks to employees?
The spread of COVID-19 is most likely where there is close contact (two metres or less) with an infected person. The main means of transmission are from secretions produced from coughs and sneezes, either directly from inhalation (due to close proximity), or from touching contaminated surfaces.
Preventative measures include:
- Maintaining and encouraging good hygiene and following general cold and flu precautions – so provide plenty of hand-sanitiser, tissues, soap and hot water and encourage everyone to use them!
- Regularly cleaning frequently-touched surfaces in communal areas
It is not recommended that employees wear facemasks to protect against the virus, unless they are symptomatic or particularly vulnerable.
It is recommended that you carry out regular risk assessments, taking account of guidance from the UK government, Public Health England (PHE) and the World Health Organisation (WHO) with regard to COVID-19 and your health and safety obligations. The ultimate aim will be to avoid inadvertently spreading the virus by encouraging (or not dissuading) employees to attend work when they ought to be at home.
Should we do anything in particular to protect vulnerable groups?
Older people and those with weakened immune systems, or chronic conditions, such as diabetes, lung disease, or cancer, are the most vulnerable to severe symptoms. Extra flexibility should be shown to those people regarding working arrangements to limit exposure.
You should also be mindful of specific health and safety obligations towards those who are pregnant or breastfeeding, and carry out appropriate risk assessments.
What should we do if we suspect someone has or may have COVID-19?
Under current UK government guidance, where someone falls ill at work with suspected COVID-19, they should be moved to an area at least two metres away from other people1 and advice should be sought from the NHS 111 website or by calling 111. No restrictions or special control measures currently need to be put in place, pending laboratory results. Guidance on special control measures may change over time, and you should stay updated on developments.
You should also consider requiring employees to notify a named contact or group if they have, or may have been, in contact with someone with, or with suspected, coronavirus so that you can assess the risk and take appropriate action.
Do we have to close the workplace?
Current UK government guidance is that that there is no need to close the workplace even where someone with suspected or confirmed COVID-19 has been in the workplace, or where someone falls ill at work. Where COVID-19 is confirmed, you will be contacted by PHE to advise on actions and precautions to be taken. Again, guidance on such measures may change over time.
Can we make employees work from home?
Allowing or requiring people to work from home (or another remote location) is a recommended step for helping to control the transmission of COVID-19.
Strictly, in the absence of a contractual clause which provides for working from home, the employer may be in breach of contract. However, if the rationale for such action is to protect the health and safety of the wider workforce and/or in response to UK government guidance, then the employer’s implied duty in respect of health and safety is likely to triumph.
What if employees can't realistically do their jobs remotely?
Working remotely is not always feasible. In these circumstances, consider whether steps could be taken to limit contact between the workforce, for example, by having segregation within and outside premises, adjusting team and shift rotations, adjusting working hours to avoid peak public travel times, and/or limiting the number of people on site at any given time.
After these options have been exhausted, you may determine it appropriate to suspend individual(s) from work if it is considered that they pose a particular risk.
Can we refuse to allow access to work?
Given your duty to protect the health and safety of staff, suspending individual(s) from the workplace is an option if the circumstances deem it, although the decision to suspend employees should not be discriminatory. Any period where you require employees to be off work should be reasonable and no longer than necessary.
Strictly, in the absence of a contractual clause which provides for suspension from work, the employer may be in breach of contract. However, if the rationale for such action is to protect the health and safety of the wider workforce and/or in response to UK government guidance, then the employer’s implied duty in respect of health and safety is likely to triumph.
Can we insist on an employee self-isolating?
As above, your duty to protect the health and safety of staff could extend to insisting on self-isolation for the recommended period, particularly if individuals have returned from a high-risk area, regardless of whether they are displaying symptoms. The decision to require self-isolation should not be discriminatory, and should be carried out with the rationale of protecting the health and safety of the wider workforce. Staff may or may not be able to work from home during this period, depending on the extent of any symptoms and/or the nature of their role.
As above, requiring someone to self-isolate may be in breach of contract, but if the rationale for such action is to protect the health and safety of the wider workforce and/or in response to UK government guidance, then the employer’s implied duty in respect of health and safety is likely to triumph.
What do we need to consider if people are working from home, or away from the workplace due to suspension or self-isolation?
You should make clear what the arrangements are with regard to pay, obligations to work, contact and communications whilst employees are away from the workplace.
Where people are expected to work from home, they should be provided with the equipment they need to do so. Where periods of home working have the potential for being lengthy, employers should be mindful of a need to provide work and personal support, for example, ensuring that the home working environment is a ’safe’ place of work for health and safety purposes, having systems in place for work supervision and monitoring performance.
Individuals who are working from home should also be reminded of their obligations with regard to the company, for example, care of company property and duties of confidentiality.
Ongoing communications are important to allow individuals to remain connected with their employer, and so they know who to contact with any queries or concerns. Open and honest communications with staff will help manage the flow of information, mitigate against media hype and reduce feelings of isolation from work.
Can we enforce workplace working if an employee is refusing to come in
Where individuals are not unwell but are genuinely concerned about attending work, or travelling for work, due to potential risks to their health, they should be shown sympathy. You should explore any concerns to see if any support could be offered, or alternative arrangements put in place – for example, working from home or other flexible arrangements to continue working – or to agree to paid annual leave or unpaid absence if working from home is not feasible.
More flexibility may be required for certain individuals, for example, due to pregnancy or because they are at higher risk due to medical reasons. Failure to provide such flexibility may be considered discriminatory.
Individuals who unreasonably refuse to attend work, for example, where there is negligible risk, could face action under disciplinary and/or absence policies. However, action should be reasonable and the health and safety considerations, as well as official guidance at the time, will be relevant.
Do we have to pay employees who are absent from work?
Where an individual is prevented from working because they are unwell, the company’s normal sick pay policy should apply.
An individual who can work effectively from home should continue to be paid as normal. Similarly, if you have asked individuals not to come to work, even if they are well but are unable to work from home, they should be paid as normal and the time away from work treated as authorised paid leave.
When an individual is not unwell but is prevented from working because they are, for example, in self-isolation, quarantine, or stranded abroad, or they have otherwise been advised to stay at home as a result of medical or UK government advice and are unable to work remotely, there is no legal right to be paid for the time off, but both ACAS and the Secretary of State for Health have advised such absence to be treated as sick leave under the company’s sick pay policy. You may take a different view where self-isolation is entirely voluntary, that is, by choice rather than because they have been told by a medical professional to self-isolate.
Statutory sick pay (SSP) will be payable to eligible workers, although the UK government has announced a series of measures to relax the ordinary rules in light of the COVID-19 outbreak. On 4 March 2020, the UK government announced its intention to introduce emergency legislation to provide for payment from day one of absence (instead of day four) for those unable to work as a result of being advised to self-isolate, or where they are caring for someone with COVID-19 symptoms who has been told to self-isolate. The UK government has also advised that employers exercise discretion over the requirement for workers to provide a fit note to evidence COVID-19 related absences for the purposes of SSP eligibility. They report that an alternative to the fit note is in development so that NHS 111 can document their advice to self-isolate, which can be used as evidence of the reason for absence.
As announced in the UK Chancellor’s Budget on 11 March 2020, small employers (that is, with under 250 employees) will be able to recover SSP from the UK government for up to 14 days per person.
The UK government also announced in the Budget that Employment Support Allowance (ESA) would be available to the self-employed, and to workers whose earnings are too low to be eligible for SSP, if they are affected by COVID-19 or self-isolating due to UK government advice. ESA rules will also be relaxed so that payment is from day one of absence (instead of day eight), and to remove the need to attend a job entre to claim.
You may want to consider a temporary enhancement to company sick pay policies in order to incentivise people to remain off work, as insufficient sick pay provision risks individuals reporting for work. Any such changes should be kept under review and adapted as circumstances change.
Can we make employees take annual leave instead of paid leave?
Unless the contract provides otherwise, an employer who wants to require an individual to take holiday at a particular time must give twice as much notice as the period of absence, that is, to require a five-day period of absence, 10 days’ notice must be given.
Employees may also want to take holiday as an alternative to unpaid leave. They are required to give notice of an intention to take holiday. Again, unless the contract provides otherwise, this is twice as much notice as the period of leave. However, you should consider relaxing any rules around the giving of notice by employees for taking holiday where this is requested as an alternative to unpaid leave due to COVID-19 restrictions.
How should we cover absences?
If you are anticipating an increase in absences, you should have contingency plans in place for back-up resources to cover absence. This could involve increasing the hours of other employees (albeit remaining mindful of the Working Time Regulations and any restrictions on maximum weekly hours) or relying on agency workers. You should also consider whether any upskilling or training is required to increase the ability of individuals being able to cover the work of others.
What should we do about business travel?
Employers are advised to take proportionate action to protect workers by cancelling business trips where UK government and/or insurance guidelines advise against travel to the particular destination. In particular, companies are likely to want to restrict non-essential business travel, particularly to and from high-risk countries.
Where individuals have returned from high-risk places (whether for business or personal travel), they may be subject to health screening, quarantine and/or self-isolation. Where individuals are required to undergo a period of quarantine or self-isolation, employers should encourage compliance.
You should consider requiring individuals to inform you about when and where they have travelled, and to keep you updated with business travel plans so that you can continue to monitor risk and act accordingly.
Can we stop people taking personal travel?
Although you cannot prevent people from travelling for personal reasons, staff should be reminded of current UK government guidance and encouraged to comply with travel advice issued.
An employer can prevent an employee from taking holiday by serving a counter-notice to the annual leave request (see above). An alternative is to make clear that if they have to go into quarantine/self-isolation on their return, and remote working is not possible, extra time off will be unpaid unless they take further holiday.
As with business travel, you should consider requiring individuals to inform you about when and where they have travelled, and to keep you updated of their personal travel plans so that you can continue to monitor risk and act accordingly.
What if schools close?
School closures are likely to result in employees needing time off work to care for dependants.
Whilst there is a statutory right for time off in circumstances such as these, the amount of time off must be ‘reasonable’. This is ordinarily seen as 1-2 days in order to put alternative arrangements in place, although in COVID-19 circumstances, this may not be as straightforward to organise, and employers should be pragmatic about what they consider to be ‘reasonable’.
Unless company policies provide otherwise, there is no right for the time off to be paid.
It is also open for individuals to take annual leave to cover absence in these circumstances, or for employers to agree to paid or unpaid time off.
What practical steps should we take?
- Regularly monitor risk, including having knowledge of when and where people have travelled and whether they have come into contact with anyone with, or with suspected, coronavirus
- Keep everyone updated on actions being taken to reduce exposure in the workplace, using internal communications to manage risk and control perceived risks as a result of media hype
- Make sure contact details and emergency contact details are up to date, and that employees know who to contact
- Make sure everyone knows how to spot symptoms
- Ensure managers are aware of relevant process (e.g. sickness reporting and sick pay, including any deviations from normal company policy for COVID-19 purposes)
- Ensure managers are aware of processes in the event of suspected cases within the workplace
- Stay abreast of UK government, PHE and WHO guidance
- Utilise technology to minimise the need for travel
- Ensure remote working structures are accessible and ready for wide-scale use (if applicable)
- Check local incentives for tackling COVID-19, including any financial support available
- Adopt a consistent and clear approach, albeit being flexible to adapt to changing guidance
- Review insurance coverage
- COVID-19: guidance for employers and businesses – Department for Business, Energy and Industrial Strategy, and Public Health England