Many businesses are confused about their rights and responsibilities in relation to Coronavirus in the workplace. In this note, we have sought to answer common questions in this area.
The situation relating to Coronavirus is developing and we will update this note as necessary to keep you up to date.
This note is current as at 17 March 2020.
Question 1 – Are employees entitled to statutory sick pay if they self-isolate?
Employees who are self-isolating may not be incapable of work and therefore confusion has arisen about whether statutory sick pay will be payable during these periods.
Generally an employee is entitled to statutory sick pay (SSP) when they are incapable of work due to sickness. SSP usually becomes payable from the fourth day of illness. If an employee is absent for more than 7 days, they will usually be required to produce a doctor’s certificate (or fit note) in order to receive payments of SSP
Recent legislative changes mean that where an employee is unable to attend work because they are self-isolating in accordance with medical instruction or the recent Government guidance, they will be deemed as incapable for work and therefore entitled to SSP. Recent Government Guidance on self-isolation is that:
- Vulnerable people should self-isolate for 12 weeks. This includes over 70’s, people with serious underlying health conditions (namely those who are instructed to get a flu jab each year) and pregnant women; and
- If one member of a household has symptoms of coronavirus, the entire household must self-isolate for at least 14 days. Each member of the household must also self-isolate for at least 7 days from the onset of symptoms meaning that the period of self-isolation may be longer for some individual than 14 days.
It is expected that further legislation will be passed this week (wk commencing 16 March 2020) to provide that SSP will be payable from day 1 rather than day 4.
The Government has also announced that small employers (with fewer than 250 employees as at 28 February 2020) will be reimbursed for any SSP paid to employees in respect of the first 14 days of sickness related to Coronavirus
In the March 2020 Budget, the Government also announced that a temporary alternative to the fit note will be introduced in the coming weeks which can be used for the duration of the Coronavirus outbreak. This system will enable people who are advised to self-isolate to obtain a notification via NHS 111 which they can use as evidence for absence from work, where necessary.
The current SSP rate is £94.25 which will increase to £95.85 from 5 April 2020.
Question 2 – what about contractual sick pay during self-isolation?
Entitlements to contractual sick pay will depend on the terms of the contract.
As employees who are self-isolating in line with medical instruction or Government guidance will be entitled to SSP, it is advisable that employers treat any such periods of self-isolation as sickness absence for the purposes of contractual sick pay.
Question 3 - In what circumstances could holiday be used by workers to cover periods of absence?
Normal rules on taking annual leave under the Working Time Regulations 1998 will continue to apply.
This means that workers are entitled to take annual leave during sickness absence but may not be forced by the employer to do so. Some workers may therefore choose to use up some of their annual leave rather than be paid SSP only during periods of self-isolation or illness due to Coronavirus.
Question 4 – We have an employee who is attending work with a cough. Can we send an employee home from work to self-isolate?
If the workplace and the nature of the role allow for remote working then this may be the most appropriate option.
If homeworking is not possible, the employer may be entitled to treat the employee as on sick leave. This will likely depend on whether the employee falls within the category of individuals who have been told to self-isolate by the Government. If the employer is just being extra cautious, it may be more difficult to successfully argue that the employee is on sick leave.
However, if an employee disputes that they should be in self-isolation, further advice should be taken to avoid grievances or claims. Sending an employee home from work without a good reason may give rise to claims for breach of contract, especially where their pay is affected.
If an employee develops more significant symptoms of Coronavirus and has been to a high risk specified area in the last 14 days, current Public Health England guidance should be followed in relation to isolating the employee and cleaning the workplace.
Question 5 - Where an employer sends an employee home from work to self-isolate, what pay are they entitled to?
This will depend upon the precise circumstances of the decision to remove the individual from the workplace.
Where the employee is able to continue to work from home then they will usually continue to be entitled to their normal rate of pay. If they are not able to work from home, much will depend on whether the employee falls within the category of individuals who have been told to self-isolate by the Government.
The employer may be entitled to treat the employee as on sickness absence and pay any SSP or contractual sick pay to which the employee is entitled. Where an employee is suspended because of a possible risk of infection which does not fall within the government’s self-isolation advice, it is likely that they have the right to continue to receive full pay. Some casual employees may have no entitlement to be provided with work and therefore have no entitlement to pay if the employer does not provide them with work due to a fear of possible infection.
Question 6 - Where an employee refuses to attend work due to fears about coronavirus, what action can the employer take and what pay are they entitled to?
If the employee can work from home then this may well resolve the issue.
If not, the employer would need to consider the current public health advice, the specific reason that the employee is concerned about attending work and whether it would be discriminatory to refuse home working, to take disciplinary action, or withhold pay in light of the employee’s refusal.
In relation to high risk employees (such as over 70’s, those with underlying health condition and pregnant women) Acas guidance states that an employer should listen to any concerns staff may have and if they are genuine, the employer must try to resolve them to protect the health and safety of their staff.
For example, if possible, the employer could offer flexible working, or allow the employee to take holiday or unpaid leave. Failure to give proper consideration to genuine concerns may lead to discrimination claims, especially where an underlying illness amounts to a disability for employment law purposes.
Question 7 - Are we entitled to require an employee to work from home?
If there is already an established requirement to work from home where appropriate or where instructed to do so, then there is unlikely to be an issue in applying that obligation in an effort to contain the spread of Coronavirus.
If not, imposing home working would arguably constitute a variation of the contract requiring employee consent. However, where an employee is faced with either being on SSP or nil pay as an alternative, they may well be willing to consent to working from home as a way of preserving pay. If any employee refuses to work from home or indicates that they are unhappy to do so, further advice should be taken to avoid grievances or claims.
Where home working is being newly introduced, or expanded, the employer should ensure that the health and safety implications have been considered and that the necessary infrastructure is in place. Risk assessments are likely to be necessary.
Question 8 – What about pregnant women?
Pregnant women are now being told to limit all social contact for a period of at least 12 weeks. Where a pregnant employee can work from home, this may be the best option subject to carrying out any necessary risk assessments from a health and safety perspective.
Where it is not possible for the person to work from home, they will be entitled to receive sick pay as set out in relation to questions 1 and 2 above.
Question 9 - Can we refuse to allow an employee to work from home if they will also be looking after children who have been sent home from school or nursery?
In normal circumstances, it would not be appropriate for an employee to work from home while also providing childcare.
However, as the Coronavirus outbreak escalates, employers may need to take a pragmatic approach. If all schools and nurseries close, the majority of parents in the workplace will face this issue and putting a blanket ban on working from home while also looking after children may preclude a large proportion of the workforce from performing any duties. In these unprecedented circumstances, employers may be prepared to take a more relaxed and flexible approach to homeworking and allow employees to work around their childcare responsibilities.
Employees in these circumstances may assert their right to time off to care for a dependant Time off in these circumstances is unpaid, unless there is a contractual right to pay.
Question 10 - Can an employer require an employee to undertake work-related travel overseas?
This depends upon the nature of the FCO advice on travel to the areas of the country in question.
It would not usually be appropriate to continue to require work travel to areas which the FCO has advised against travelling to. In most cases it would not be a reasonable request to require travel to such areas and may amount to a breach of contract.
Requirements to travel to other areas may be reasonable depending upon the circumstances. Given the constantly developing circumstances, many businesses have cancelled overseas travel at this time.
Question 11 - Can an employee still be required to travel to a work event within the UK?
This will depend upon the current Government and public health advice on travelling and attending events within the UK, and the nature of any objections from the particular employee.
If the employee is in a high risk category, such requirements may not be reasonable. It may be necessary to consider adjustments.
The employer should consider whether attendance at the event is really necessary, even if the employee does not fall into a high-risk category, given that many employees will have understandable anxiety about long journeys on public transport and attending large events.
Question 12 - At what point should an employer close the workplace?
Acas guidance advises that if someone with Coronavirus comes into a workplace, the workplace does not necessarily have to close. Decisions about necessary measures will be taken in conjunction with Public Health England.
Employees and other visitors should be informed about the risk as soon as possible. The identity of the individual with Coronavirus should not be disclosed for data protection reasons.
Question 13 - Is an employer liable where an employee is harassed by other employees because they are from a country with a high incidence of Coronavirus (for example, China or Italy?
There have been reported incidents of racial harassment of Asians in relation to Coronavirus. Unfortunately, there is the potential that employees may be harassed by colleagues or customers in the workplace because they are perceived to be at a greater risk of having the virus.
For the purposes of the Equality Act 2010, anything done by an employee in the course of their employment is treated as having also been done by the employer. The employer can be liable for harassment in these circumstances, whether or not the harassment is done with the employer’s knowledge or approval.
There is a defence available to an employer if it can show that it took “all reasonable steps” to prevent the employee from doing the discriminatory act. Employers would be advised to establish a zero-tolerance approach to harassment in the workplace, which is communicated both internally and externally, ensure all workers are aware of their anti-harassment policy and provide training to all staff on how to recognise harassment and what is inappropriate behaviour.
Question 14 – Can we consider layoffs or short time working?
Laying off employees means that the employer provides employees with no work (and no pay) for a period while retaining them as employees. Short-time working means providing employees with less work (and less pay) for a period while retaining them as employees.
These are temporary solution to the problem of no or less work. However, if employees are laid-off or put on short-time working in circumstances where the employer does not have the contractual right to do so then the employer will be in fundamental breach of contract entitling the employee to resign and claim constructive dismissal. Advice should be sought before imposing layoffs or short time working.
Question 15 - What action should employers be taking now?
The action an employer should be taking will depend, to some extent, upon the nature of the workplace, the roles carried out and the demographic of the workforce, but some of the issues that employers should consider from an employment law perspective include:
- The employer’s approach to sick pay.
- Whether the infrastructure is in place to allow large numbers of employees to work from home.
- Compliance with government guidance on hygiene in the workplace.
- Communication with pregnant employees regarding their position.
- Clear communication with workers on the employer’s policy on homeworking, work travel and self- isolation.
- Ensure that employees have provided up to date personal details.
- Plan for mass closures of schools and nurseries. Identify business critical roles and how they can be maintained. Consider what pay employees will receive if they work part-time to fit around childcare, and the benefits of acting flexibly to allow as many employees as possible to continue working.
- Provide clear information to managers on how to deal with an employee who attends work displaying symptoms or who has potentially been exposed to the virus.
- Identify any high-risk employees and consider whether there are any potential discrimination implications which mean a more cautious approach is required.
- Consider whether any domestic and international work travel and events are necessary.
- Consider whether internal meetings can be carried out through virtual meetings.
- Identify the minimum safe level of workers required to continue operating, and how that can be maintained in the worst-case scenario. Identify the point at which the business may need to cease operating temporarily and consider the employment law consequences.