Please note: the legal advice given in this article is correct as of 05/01/21. Due to the ongoing nature of the coronavirus pandemic, 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 one of our team for specific advice.
As the UK continues to battle the coronavirus pandemic and enters its third national lockdown, we are this week seeing an increased number of enquiries from employers of essential businesses who will be remaining operating under current restrictions.
Here I’ll answer some of the common questions we’ve recently been asked.
What do we do if a worker becomes unwell with suspected COVID-19?
If your business is permitted to remain open during the nationwide lockdown, as an essential business, it is essential you manage the risks involved in workers being present on premises.
Under current guidance, if a worker becomes unwell with suspected COVID whilst on the premises, they must be sent home and instructed to book a coronavirus test at the earliest opportunity. If the test confirms they have coronavirus, the worker must self-isolate for a minimum of 10 days.
If a worker becomes unwell with suspected COVID whilst at home, they should be instructed to remain at home and book a test at the earliest opportunity.
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 10 days from the last time they had contact with the confirmed case.
Do we need to pay a worker who is in quarantine or who is 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 10 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.