Coronavirus: Employer Obligations
Our Employment Law Associate, Jodie Hill of Thrive Law, talks to Radio 5 Live about the impact of Coronavirus on the workplace and, the opportunities for developing flexible working in your organisation.
Jodie’s blog will also be regularly updated as the situation developments so please feel free to use and connect.
If your question is not answered here, Thrive Law have set up a specific email helpline to answer any further queries which you may have. This will be a free service offered to both employees and employers, to ease any anxiety which persons may have about employment rights and coronavirus. The contact details are: coronavirus@thrivelaw.co.uk.
Please visit the government website for more of the latest guidance on the coronavirus.
The below covers numerous different scenarios and guidance, including:
- If an employee is sick due to Coronavirus (or symptoms);
- Self-isolation directed by government guidance or NHS instruction;
- Self-isolation directed by an employer;
- Self-Isolation by the employee as a protective measure;
- Self-Isolation to care for dependents;
- Coronavirus and the impact of being self-employed;
- Coronavirus and the impact of being on a zero-hours contract; and
- Guidance for employers on best practice.
- Your frequently asked questions.
If an employee is sick due to Coronavirus (or symptoms)
In this scenario, the usual sick pay provisions will apply as they would be classed as “unfit to work”. The current guidance is that employees should be encouraged to go home as soon as they show symptoms, and large companies should consider whether to have an “isolation room” from which they can call 111 and gain medical advice.
An employee will be required to certify themselves as sick (“self certify”), in accordance with the employer’s sickness policy for the first 7 days. After 7 days the employee must obtain a sick note; this was previously obtained from a GP, but new changesmean that a sick note can be obtained from 111 as well. The usual sick pay provisions will apply, meaning that employees will need to check their contract and if they have contractual sick pay this will kick in. If not, Statutory Sick Pay (‘SSP’) will be paid, if they are eligible. SSP is currently set at £94.25 a week.
The government have made recent changes regarding SSP:
- On 4 March, it was announced by the government that sick pay entitlement would be changed by emergency legislation, to allow for SSP from the first day of sickness (previously, the first three days were unpaid). This is expected to result in an extra £40 for people receiving SSP. This is to ensure that those who are sick due to coronavirus, are receiving some money from day one and not penalised for taking time off and not spreading the virus around their workplace. Whilst this does not provide full pay it does provide some pay from day one to those who are eligible.
- On 11 March, in the budget, it was announced that SSP for the first 14 days will be reimbursed by the government for employers with less than 250 employees. The full details have not yet been announced, but this blog will be updated when further information is provided.
- On 11 March, it was also announced that 111 will be able to issue sick notes for employees, in an attempt to keep unwell people away from GP surgeries.On the 13th of March, The Statutory Sick Pay Regulations 2020 came into force with an amendment in regards to the Coronavirus.
This outlines that SSP will be available to anyone isolating themselves from other people in order to prevent infection or contamination with coronavirus, in accordance with guidance published by Public Health England, NHS Scotland or Public Health Wales.
Self-isolation directed by government guidance or NHS instruction
Government advice outlines that certain travellers returning from designated countries and regions will be required to self-isolate.
If an employee is abroad and is in mandatory quarantine (for example, stranded on a cruise ship or in Italy) an employer could consider allowing employees to extend their use of annual leave, requiring that any lost time is made up later or triggering unpaid leave. They could use their discretion to continue to pay as “exceptional leave”. There is no legal requirement to pay here, but it would be seen as best practise here where it is out of their control.
Travellers returning from a wider area are currently required to self-isolate only if they show symptoms. Other people might be told by either 111 or their GP to self-isolate, if they have come into contact with certain individuals.
If an employee has been told to mandatorily self-isolate for a period of 14 days, or if they are worried about catching the coronavirus and choose not to come into work, then the easiest solution is, in an industry or role which allows it, to permit an employee to work from home for the duration (or at least some part) of their isolation.
If an employee is displaying no symptoms but still chooses to isolate themselves and cannot work from home, this would constitute unpaid leave. An employee could also have the option of taking this leave as holiday pay.
Self-isolation directed by an employer or office closure
Where a workplace is closed, the reaction by the employer is, again, conditional on the company’s policies and preference. They may have a policy which specifically addresses workplace closures, which they should follow in these situations. If the employee works in an industry that doesn’t mandatorily require them to be at the site of your workplace, they may be eligible for flexible working/home working under these circumstances. Click here to read a recent blog we have written about this.
Alternatively, an employer has the options of allowing use of annual leave, requiring lost time is made up or giving exceptional leave. In the case of workplace closures, employers can’t usually deduct pay from employees or require that the time is unpaid where the employee is fit and able to work.
Remember – Where an employee is ready and able to work and their employer is not allowing them to, they may be entitled to be paid in full, for their normal contractual hours.
With regard to layoffs mainly concerning fields of employment such as manufacturing, construction etc, employees may find that they are subject to a lay off during the coronavirus outbreak. What this means is that if a business shuts down operations or requires the employees not to come into work, employees affected are given a guaranteed minimum amount as a means of getting by. Those affected should see if there is a “layoff clause” included in their employment contracts.
Self-Isolation by the employee as a protected measure
Employers must be particularly considerate when dealing with vulnerable employees who are at a higher risk of catching coronavirus.
Employees in the above categories may choose to self-isolate where they do not have symptoms. If they do so, there is no legal obligation to pay them full pay, but employers should always be considerate and seek to support those who are most vulnerable at this time.
An employee could also have the option of taking this leave as holiday, but the employer would have discretion to refuse that request. Perhaps the best response may be to simply offer vulnerable employees the opportunity to work from home where possible.
An exception to this would be when someone suffers with health anxiety. If an employee suffers from health anxiety this could mean an employer would have to allow them sick leave because they may be self-isolating as a result of this anxiety. It may also be seen as a reasonable adjustment to do so.
An employee could seek to engage their company’s flexible working/homeworking policy. This could assist where an employee has health-related anxiety as it may be a reasonable adjustment to their role allowing them to continue working rather than take sick leave, which inevitably helps both parties. This could be any flexible arrangement agreed between the employer and employee and could vary their place and hours of work (subject to agreement).
Anyone can request flexible working, not just those with caring responsibilities and disabilities.
Self-Isolation to care for dependents
For parents who have caring obligations to quarantined children, or where there are school closures, they may also be able to use parental leave, time off for dependents, or they may themselves, whilst caring for dependants, be advised by 111 or a GP to isolate in which case this is sick leave.
If an employee is taking time off to care for a relative or parent who has been struck down with the coronavirus, an employee is entitled to take dependents leave in emergency situations to help their dependants. Such individuals hold the legal right to do this. However, they do not hold the legal right to be paid for this leave.
We recommend checking your policies and taking each situation on a case by case basis depending on the facts.
An employer should consider offering parents who must care for quarantined children either flexible working arrangements or allowing them to work from home, but are allowed to reasonably restrict home working if they are concerned that childcare arrangements means that a full working day will not be completed.
Coronavirus and the impact of being self-employed
Recommendations regarding self isolation extends to those who are self-employed. A real issue here is that a high majority of self-employed workers may not be self-isolating, on the basis that they cannot afford to.
For example, a taxi driver who is self-employed drives around customers each and every day by way of making a means to live. However, they are faced with a unique dilemma under these circumstances as they can either continue working and risk catching something they do not want to catch or they could stop working and self-isolate, only to face severe economic and financial difficulties, especially if they have no other sources of income or limited savings.
Unfortunately, SSP does not apply to those who are self-employed. Whilst there are calls to change this nothing has come into play of yet. For now, the Government initiative is to make it easier to access benefits such as Universal Credit, to ensure that those who should be self-isolating, are.
Coronavirus and the impact of being on a zero-hour contract
The issue with workers on zero-hour contracts is that hours are not guaranteed which means if the employer chooses, they do not have to offer any hours. So, rather than offering work from home opportunities, instead they may simply not offer any hours which is of course detrimental to the employee. The real concern here is that there is nothing a worker can do under these circumstances, as they cannot claim SSP when they are not being offered any hours (should they then become unwell).
If someone on zero hours contracts who is working regular hours and then becomes unwell whilst working, SSP may apply, provided they are eligible.
Zero-hours workers who are no longer offered hours may be eligible for Universal Credit. The Government initiative is to make it easier to access benefits such as Universal Credit, to ensure that those who should be self-isolating, are.
Guidance for employers on best practice
Inform
Employees should be kept informed of how a company expects the situation to evolve and what is being put in place. There will inevitably be some anxieties surrounding the company’s plan, so anything which can be communicated to your employees, should. This could include sharing the Government Guidance regularly and putting posters up.
If there is an employee with the virus, we would advise that employers do not communicate that individual’s identity for privacy purposes, but does communicate that this is the case, especially to protect the more vulnerable employees.
Safety First
Employers have a duty to provide employees with items such as hand sanitiser, antibacterial soaps, tissues etc. and ensure that they have a safe environment in which to work.
It may be that the company takes the decision to allow or encourage all employees to work from home. An employer should therefore ensure that they have all the necessary resources to do so. Alternatively, a good middle ground might be to encourage all employees to take their laptop computers home every day, in case they need to self-isolate thereafter.
In large companies where working from home is not an option, an employer could consider putting in place an “isolation space”, from which any employee can call 111 and obtain advice if they fall ill in the workplace.
Business as usual?
On 5 March, Wilko announced that they had scrapped their enhanced sick pay regime as they stated their employees were taking advantage.
We would not recommend anyone makes contractual changes in response to the virus, especially where they are detrimental to your staff as this could give rise to grievances, damage morale and at worse (depending on the nature of the changes) result in employees resigning and claiming constructive dismissal.
We recommend taking advise from making any significant changes to your employees contracts of employment.
Keeping up to date
We will keep you updated on this provision and any other changes to the law on sick pay or otherwise as a result of the virus. You can subscribe to our updates here.
ACAS have also released advice on what employers and employees should do in regard to the coronavirus.
For government advice, updates and areas which are affected (updated by the Department of Health and Social Care every day) please see the following link:
https://www.gov.uk/guidance/wuhan-novel-coronavirus-information-for-the-public
The following are the frequently asked questions which we have come across, which may not be answered by the above.
Frequently Asked Questions
Can you advise your employees to be clean shaven, for health purposes at work because of the corona virus?
- Male employees with a beard may be asked by employers to be clean shaven. This is because beards may interfere with masks for protected control purposes in environments such as hospitals etc.
- This is because having a beard means water particles could escape upon an employee sneezing. This inhibits a mask protecting other people upon someone sneezing.
- If this is ignored by an employee working in this sector, without any credible reasoning (such as religion) the employer would be entitled to dismiss the employee for failing to follow reasonable management instructions.
- If there is a genuine reason (such as a protected characteristic such as religion and belief) for an employee not shaving their beard, the employer would have to make an effort to redeploy this individual in an area where they are not required to do so.
- Please note, an employer must show that there are no lesser steps they could have taken that would have the same effect.
Can employee’s volunteer for the NHS, even if employed?
- The Government is currently consulting with businesses about potentially bringing in protection for employees who are set to volunteer for the NHS in relation to the coronavirus outbreak. This protection would cover an employee’s respective roles, for up to four weeks, if they were to volunteer. This means it would be illegal for an employer to dismiss them on this basis.
What if an employee insists on attending a country for a pre-planned holiday, or otherwise, where they know there is reasonable likelihood it will result in quarantine?
- The employer could first refuse permission to leave; if they continue to insist they want to go because they have already paid for the holiday etc, then this could be failure to follow reasonable management instructions. If they still go, then the quarantine procedures should be followed as above.
- If a quarantined employee becomes unwell, then this would become sick leave and therefore be treated as such, in accordance with the company sickness policies.
Can an employer order that an employee (who cannot work from home) doesn’t use public transport to come to work?
We would advise that this can be requested, but an employer would likely have to reimburse that employee for their losses (eg. for taxi fares or petrol costs).
