It is being widely reported that the number of confirmed cases of coronavirus (COVID-19) in the UK has recently increased and it is believed the virus may spread to a pandemic.
We are this week seeing an increased number of enquiries from employers. Here I’ll answer some of the common questions we’ve recently been asked.
Please note: the legal advice given in this article is correct as of 10/03/20. As the situation develops, guidance is subject to change and, while we will do our best to give you up to date information, it is always advisable to speak with a solicitor for specific advice.
What do we do if a worker becomes unwell with suspected COVID-19?
The worker is most probably suffering from a common cold/flu unless one of two risk factors is present:
- They have recently returned from one of the geographical areas most affected by COVID-19 (see below); or
- The worker has recently been in contact with a confirmed case of Covid-19.
The current Government guidance is that if either risk factor is present; the worker should be placed in isolation (at least 2 meters away from other workers) and you should seek immediate advice from NHS 111.
Do we need to close our workplace if a worker has suspected COVID-19?
Current Government advice is to carry on as a normal until laboratory test results confirm COVID-19. Further, if the laboratory tests confirm COVID-19 infection was present, the management will likely be contacted by the local health protection team who will conduct a risk assessment and provide advice to the employer and staff who have been in close contact. Individuals who have had close contact will be asked to self isolate at home for 14 days from the last time they had contact with the confirmed case.
Should workers returning from certain arears/countries self isolate themselves?
Specific guidance can be found on the Government website here with regards to the current “Category 1” countries and areas affected and we would advise you check this for up to date advice. Currently, these are some areas of Italy (where containment measures are implemented), Wuhan and Hubei Provence (China), Iran, and areas in Korea, where travellers should self isolate for 14 days upon return even if they have no symptoms.
For other “category 2” countries and areas for example Thailand, Vietnam, Hong Kong etc travellers do not need to undertake special measures unless they develop symptoms where they then should self isolate for 14 days.
Do we need to pay a worker who is in quarantine or who required to self isolate?
Yes – If the worker is or becomes symptomatic, they will be entitled to statutory sick pay (SSP) or contractual sick pay in accordance with their contract of employment.
If the worker is not symptomatic, the Government has made it clear that if NHS 111 or a doctor advises an employee to self isolate; they are entitled to SSP and further that the employers may need to be flexible if they require evidence as a sick note may not be obtainable if they have been told to self isolate for 14 days.
It would be good practice to offer contractual sick pay in these circumstances although this is currently not required by law.
The basis for the above is the Health Protection (Coronavirus) Regulations 2020 which came into force on 10 February 2020 due to the serious and imminent threat to public health.
Self isolation of a non-symptomatic worker does not currently qualify for SSP; however, good practice would be to agree this as sensible and treat it as sick leave in accordance with the usual contractual terms and policies.
It would also be good practice to not include such periods of absences for the purposes of any absence management trigger points or future redundancy selection.
Can a worker take time off work because a dependant has COVID-19?
It is likely that this would fall into the employees right to take unpaid dependant care leave and this allows a reasonable amount of time off to care for a dependant.
Can a worker take time off because a school is closed or because a child’s carer has it and has been forced to self isolate?
It is likely this would also fall within the employees right to take unpaid dependant care leave. An employer may want to consider allowing the employee to take holiday or work from home if this is viable.
Can we lay staff off due to COVID-19?
If there is a contractual clause in an employment contract which permits temporary lay-off of an employee, then the employer can give the required notice of lay-off and/or consult with the employee or any recognised trade unions, if relevant.
If there is no contractual right to lay-off, the employer can consider seeking the agreement of staff to a temporary lay-off or reduced hours. This will require consultation. If an employer does this without contractual provision, this could lead to a number of employment claims for constructive unfair dismissal and unlawful deduction of wages.
Can we make staff redundant?
Yes. If your business is suffering economic loss or has a sudden reduced or lack of work for employees; you may need to make immediate costs saving measures and employees may therefore be redundant. Specific rules apply however dependent on the number of employees affected; employees lengths of service and other factors with regards to the precise processes to follow and financial entitlements.
Are there any additional health and safety considerations?
To ensure the health and safety of all workers, employers may wish to inform and emphasise to workers about the need to quarantine themselves and self isolate if they have recently returned from one of the geographical areas most affected.
Employers should also advise who to contact within the company to discuss options as to how this can be best achieved and remind them of the importance of hygiene procedures.
If the virus starts to spread more widely, employers with vulnerable workers for example pregnant women and those with compromised immunity conditions; may also need to perform a risk assessment to determine what reasonable steps can be taken to protect those workers.
As a result of the serious and imminent threat to public health; your business may need to make changes to your contracts of employment and/or Staff Handbooks; introduce a specific written Coronavirus or Home Working policy and/or your business may need specific advice and assistance in respect of your employees and workers. If you require any assistance please contact Farleys Employment Law & HR team on 0845 287 0939 or contact us by email.
Farleys specialise in a commercial employment law & HR for businesses. Advice and support includes staff absenteeism, contracts of employment, staff handbooks, directors service agreements, apprentices, equal pay, recruitment, restructures, disciplinaries, grievances, employee exits, settlement agreements; and Employment Tribunal defence and representation.