Coronavirus – 10 Frequently Asked Questions, Answered!
As the UK waits for the Coronavirus vaccine rollout to gather pace, cases are rising and the country is entering a period of lockdown restrictions similar to those seen in March 2020.
The continued spread of the virus means that even employers who have not yet had any staff members fall ill with Covid19 are likely to find themselves dealing with it in some way over the coming months.
Whilst we continue to update our Ultimate Furlough FAQs as new information is released, there are other Coronavirus implications that employers should be aware of.
Read on for our latest advice on everything from pay during self-isolation, test results, vaccinations and the impact of school closures, plus much more.
1. My employee has been told to self-isolate or ‘shield’. How long should they isolate or shield for and what pay are they entitled to?
Your employee must legally self-isolate if they receive a positive test result or are told to self-isolate by the NHS Test and Trace service. The obligation to self-isolate also applies if they or anyone they live with has symptoms or tests positive, or if they arrive in the UK from a country with a high risk of Coronavirus. Self-isolation periods will last for a minimum of 10 days. There are different isolation periods depending on the circumstances, and the NHS website has the latest timescales.
Once again, people who are deemed to be ‘extremely clinically vulnerable’ and at particular risk of contracting Coronavirus may be advised by their health professional or local authority to shield and minimise their contact with others. Employees in this position should be able to provide you with a confirmation letter or other documentation.
Employees who are self-isolating or who have been advised to shield will be entitled to Statutory Sick Pay from the first day of their absence. If the illness is not related to Coronavirus, then the entitlement to Statutory Sick Pay is only from the fourth day of absence. Employees who have chosen to, rather than been advised to, shield are not entitled to Statutory Sick Pay unless they become too ill to work. In addition, employees who have been advised to shield can be furloughed under the Coronavirus Job Retention Scheme or may qualify for Employment Support Allowance or Universal Credit.
If you have a Company sick pay policy, employees will be entitled to this if they are too ill to work. If they are not too ill to work, then they may not strictly be entitled to company sick pay. We would suggest that employers use their discretion and consider extending company sick pay to cover self-isolation periods to encourage employees to obey the law and to reduce the risk of spreading the virus. Whatever decision you take, be consistent to avoid claims of unfairness or discrimination.
Generally, employees who are self-isolating cannot be furloughed for the isolation period (although if they were already furloughed when they were told to self-isolate, the furlough can continue). However, employees who have been advised to shield can be furloughed during self-isolation and at any other time, as can those who have caring responsibilities arising from Coronavirus.
Employers should consider whether it is reasonable to set aside Coronavirus-related absences from trigger points in their Policies in order to encourage employees to remain at home and limit the spread of the virus. If employees are not too ill to work, they may be able to work from home but should not come into their place of work.
It may not be possible for employees to obtain a fit note from their health professional as quickly as they might usually have done because of the pressures on health services and constraints on appointments. Employers are therefore encouraged to relax this requirement or ask their employee to obtain an Isolation Note from the NHS website, which also allows employers to check whether the note is genuine.
2. I need my employee to come to work but they’ve been told to self-isolate or shield. Do they have to do this?
Employees who have been told to self-isolate or who have tested positive are under a legal obligation to self-isolate and must not attend their place of work, otherwise, they risk a fine of at least £1,000. Employers who knowingly allow an employee to attend the workplace during a period of self-isolation also risk a fine of at least £1,000, rising to £10,000 for repeat offences.
Employees who have been advised to shield should not attend work. This does not mean they cannot do so, but employers need to remember that those in the shielding category are particularly at risk from Coronavirus. Where possible they should work from home. If this is not possible then employers may consider furloughing the employee under the Coronavirus Job Retention Scheme.
Employers must continue to think carefully about planning for employees who may be unable to attend work. Think about what you can do to allow as many people as possible to work from home, consider setting up ‘workplace bubbles’ to ensure that one person does not infect all employees at the same time, and ensure that ongoing work is clearly recorded so that it can be picked up by colleagues if required.
3. One of my employees has caught Coronavirus. Should I tell their colleagues? What else should I do?
Employers can tell their employees if there is a suspected or confirmed case of Coronavirus in the workplace but should take care not to name or identify the particular person.
Colleagues who have had contact with the employee will not usually have to self-isolate unless they were not following social distancing rules, or if they themselves develop symptoms, or if they are told to self-isolate by NHS Test and Trace.
If the employee develops symptoms at work or was told to self-isolate whilst at work then the workplace should be cleaned thoroughly in accordance with the guidance on Gov.uk.
If there are five or more cases of Coronavirus in a workplace in 14 days, the employer should contact their local Health Protection Team for further advice.
4. I don’t believe that my employee really has Coronavirus. Can I ask them for proof of a positive test result?
Yes, you can ask your employee for proof of their test result. However, employers should be aware that this forms part of the employees’ medical record and as such the employee does not have to consent to share the test result with you. Employers have no right to ask for proof of test results for anyone other than their employees (for instance, other members of their households or friends).
Employers and employees should have a mutual obligation of trust and confidence in one another. This continues to be a difficult time for everybody and so the vast majority of employees are unlikely to want to mislead their employers.
However, if you have a genuine belief that your employee is acting dishonestly then you may choose to ask your employee again to provide proof of their test result, and/or to conduct a fact-finding investigation which might result in action under your Absence or Disciplinary Policy. Formal action should always be a last resort.
5. My employee has been told to self-isolate more than once. What do I do?
Employees may be told to self-isolate on multiple occasions or for more than 10 days at a time during the pandemic. This is because they might come into contact with more than one person who has the virus, or they may live in a household where everyone develops symptoms at different times.
As above, it is an offence for an employer to knowingly allow an employee to come into the workplace when they should be self-isolating.
If the employee can work from home and they feel well, there is no reason why they cannot work during their periods of self-isolation. If they cannot work from home, then consider whether there are any duties that they can perform on a short term basis whilst their self-isolation period continues.
6. Can I insist that my employees have the Coronavirus vaccine? Can I ask for proof that they have been vaccinated?
In short, employers will find it extremely difficult to insist that their staff must have the vaccine.
The UK vaccination program is still in its very early stages and it is likely to be some time before the working-age population are eligible for the vaccine to any great degree. It is unlikely to be practical for employers to demand that their employees are vaccinated as there will be very little choice over when the vaccine is offered to them.
The Government has clearly stated that vaccinations will not be mandatory for several reasons including human rights legislation implications, the risk of vaccinating without informed consent, and in order to encourage greater confidence in the vaccine itself.
Employers will face similar issues, not least because there will be a number of employees who cannot or will not be vaccinated because of other health conditions or disabilities, or because of their religion or philosophical belief. Employers who force vaccination on these groups of employees will risk discrimination claims under the Equality Act 2010. Employees might also have other reasons for refusing to be vaccinated, such as a general hesitancy around vaccination itself, a fear or phobia, or even difficulty accessing or travelling to a vaccination site.
It is unlikely that we will ever need, or be able to, to vaccinate 100% of the population – the goal is to vaccinate as many people as possible to reduce transmission of the virus. Workplaces should think in a similar way – there will always be some staff members who have not been vaccinated, but the risk of transmitting the virus will still be much lower. The vaccine itself is not 100% effective either, so even vaccination does not absolutely guarantee that the person will not contract or spread Coronavirus or a variant of it.
Our advice is that employers need to think very carefully about why they want to insist that employees have the vaccine and whether this request is reasonable. For example, if it is because of concern about the spread of the virus in the workplace then it might be more practical to retain some of the measures that are already in place (such as screens, sanitiser stations and mask-wearing) instead until the general risk has diminished. If it is because the employee works with vulnerable colleagues or customers, then again, other measures might still reduce the risk of transmission to an acceptable level, or alternatively, the employee could be moved to a lower-risk role if one is available.
Whilst employers can request proof of vaccination, they should be aware that this forms part of the employees’ medical record and as such the employee does not have to consent to share it with you.
7. What do I do if my employees need time off to get vaccinated?
Time off for vaccination is probably most easily dealt with under any existing policy you might have on time off for medical appointments. In general, there is no right to paid time off for medical appointments although your policy or contract of employment may give the right to be paid.
As the vaccination rollout expands, you may find that several employees are invited to be vaccinated. Whilst granting time off for this might seem disruptive, employers should remember that this will be relatively short-lived and that doing so will mean you are taking steps to reduce the spread of the virus amongst your workforce and the population, increasing the likelihood that life can begin to return to a form of normality.
8. My employee has told me that their childcare arrangements have changed, or that their child’s school or nursery is closed, or that they need to care for a vulnerable person. What are their options?
School and childcare provision has been disrupted throughout the pandemic, and most settings apart from nurseries are closed under the latest round of restrictions in January 2021. Those who are shielding, self-isolating or who are otherwise vulnerable to Coronavirus are relying on their families and carers for support and assistance if they find themselves unable to leave home.
All employees are entitled by law to a reasonable amount of unpaid time off as emergency dependents leave – a dependent is usually a spouse, partner, child, grandchild, parent or someone else who depends on them for care. This is more likely to be applicable when arrangements change at very short notice and are not intended to be used for longer-term arrangements or where the situation was known about beforehand.
Employees who have one years’ service, and are a parent or have parental responsibility for a child are entitled to unpaid parental leave of up to 18 weeks for each child up to their 18th birthday. Each parent can take a maximum of four weeks leave per year for each child and the leave must be taken on blocks of whole weeks unless the child is disabled in which case leave can be taken in days. Employees must give 21 days’ notice if they wish to take parental leave, employers can postpone a request for up to six months but cannot refuse it altogether. Parental leave can therefore be used to support childcare arrangements over the longer term.
Other leave options include allowing employees to take some of their annual leave entitlement, or taking unpaid or compassionate leave according to your workplace policies.
However, there is no doubt that the pandemic has changed the way we all work and has challenged previous notions of what is achievable from home. Employees are very likely to willing and able to work in some capacity even if their arrangements have changed so employers should consider offering temporary or permanent flexible working as an alternative to taking leave, especially if working hours can be altered to fit around other commitments. You might also agree that employees can make up lost working time later, or that they can carry out different duties for a period of time. Communication is key and we would suggest that you have an open and supportive conversation with employees who find themselves in this situation so that appropriate solutions can be explored.
Employees who are unable to work because they have caring responsibilities resulting from Coronavirus are eligible to be furloughed under the Coronavirus Job Retention Scheme.
9. My employee is reluctant to come into work because of Coronavirus, can I make them attend?
The current Government advice is that you may only go to work if you cannot reasonably work from home. Every possible step should be taken to enable employees to work from home. If your employee must attend work but is reluctant to do so, you should talk to them about why this is. You should offer clear reassurance about the Covid-secure measures you have taken and listen to any suggestions put forward. You might consider whether there are other employees who can do the role and who feel more comfortable about attending work. If the employee is shielding or extremely clinically vulnerable then they should not attend work and can be furloughed.
If you are satisfied that you have taken all possible steps to make the workplace safe and control the risk of the virus and your employee still refuses to attend, you could ask them to take a period of unpaid leave. As an absolute last resort, employers may take disciplinary action if the refusal to attend is thought to be unreasonable. However, this is a challenging time for all of us and it is clear that some employees will have very genuine concerns, for a variety of reasons, about being in the workplace whilst the virus continues to spread.
10. I think my employee is breaking lockdown rules. Can I discipline them?
Generally, employers have little control over what employees do in their private or spare time. However, if the employees’ actions put staff or customers at risk (for example, if they were not following social distancing guidelines at work, or if they had been told to self-isolate but still came to work) or if there is a clear risk of reputational damage (for example, if the employee is identified at a large gathering wearing the company uniform or identifying themselves as an employee) then there might be cause for disciplinary action.
Employers should, as with all disciplinary matters, take care not to act in haste and must carry out an investigation into the allegations before deciding what if any punitive action to take. Whilst some breaches of the rules will be clear, others will be more nuanced and must be considered in the context of the speed of change that we are all facing and the social, emotional and mental pressures that we find ourselves under.
For specific advice for your business, please get in touch with our specialist Employment Law team through this website or by calling 0330 404 0778.
For all of our COVID-19 (Coronavirus) advice, please visit http://www.ashtonslegal.co.uk/coronavirus/
Our partners at Ashtons HR Consulting are also on hand to assist you
This information is correct at 4.30pm on 13 January 2021.
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