How should employers deal with COVID-19 (coronavirus)?
We’ve put together some frequently asked questions and answers about the coronavirus and how it may affect your business.
1. What are employers’ obligations?
Employers have a legal duty to ensure, as far as is reasonably practicable, the health and safety of their employees and anyone else affected by the business (e.g. contractors, workers and the public). Risk assessments should be undertaken, with special consideration to individuals who may be more vulnerable e.g. those with a disability, young people, the elderly, or pregnant women.
2. What should employers do?
Ensure effective planning for coronavirus. All staff should work from home if they possibly can. If your business is one that has been directed to close by the government then it should do so (e.g. restaurants, pubs, leisure centres).
Encourage employees to be extra-vigilant with hand washing and using/disposing of tissues etc.
Assess risks to staff:
- Can staff work from home in order to follow the latest guidance on social distancing? Allow staff to do so if possible, particularly those in vulnerable groups
- Do staff need to travel abroad for work or can this be avoided? If they do need to travel follow government guidance (e.g.
- Currently advising against travel to Hubei province and against all but essential travel to the rest of mainland China, and parts of South Korea and parts of Italy, and to avoid all non-essential travel)
- Should international meetings be held in person or can technology be utilised?
- Utilise flexible working policies
- Monitor advice and guidance from WHO, NHS, government and ACAS
- Consider policies regarding staff returning from affected areas and whether they should self-isolate or not.
- Consider particularly vulnerable staff e.g. pregnant, impaired immunity, those on secondments. In particular, consider whether any adjustments can be made to working day for these people so that they do not have to use public transport at peak times
- Provide guidance to employees about what to do if they return from an impacted area, or if they think they have coronavirus. Keep communication channels open and ensure staff are aware of emergency contact details
- Individuals should report to HR if they have travelled abroad and they should be advised to self-isolate if they are at risk
- Remember that any health information is a “special category” of personal data and that individuals should not be singled out to ask to report or for checks because of their ethnicity or nationality
- Identify key roles in the business that would be necessary for continuity purposes and consider how temporary shutdowns of premises might be managed
- Review insurance policies
- Apply policies fairly and reasonably e.g. flexible working and sickness absence.
3. If an employee cannot attend work are they entitled to pay?
If an individual does not attend because they are sick with COVID-19 they will be entitled to sick pay in the usual way (either contractual or statutory where applicable).
If they cannot attend work because of caring responsibilities, e.g. the school is closed, this should be dealt with in accordance with the usual policy for time off for dependents in the first instance. Annual leave may be taken for longer periods, and there is the right for parental leave if it is longer (unpaid). Parents struggling with childcare issues can also be furloughed. See our article on parents here.
If the individual is self-isolating on the basis of medical advice from their GP, Public Health England and/or NHS 111, and because of that isolation is unable to work, then the government has confirmed that the employee will be entitled to statutory sick pay (SSP). This is a temporary measure and will expire on 12 November 2020.
The government also confirmed in last week’s budget that SSP would be payable from the first day of absence (instead of day 4) and that it would reimburse employers with no more than 250 employees up to 14 days SSP. SSP is currently £94.25 per week and will rise to £95.85 from 1 April 2020. These Regulations have not yet been published and the government has yet to confirm how and when these refunds will be administered. If the individual is shielding then they can be furloughed.
If you pay your staff SSP, there is a risk that an individual who has been told to self-isolate will still go to work to avoid the decrease in pay. It is therefore at your discretion as to whether you pay them above and beyond SSP, for example, full or half salary.
In order to decide on the best course of action, you will need to act in accordance with your Staff Handbook and/or Sickness and Annual Leave policies.
If you wish to amend your policies, you should notify your staff in advance.
If your policy is not to pay people but individuals come into work anyway, then to compel them to isolate would likely require full pay, because there is an implied right to wages if the individuals are able to work (despite being sent home by their employer). Having a policy that sets out clearly that holiday will be required to be taken, for example, could avoid these issues.
If you would like one of our experienced practitioners to review your handbook, policy and/or employment contracts, please send us an email to our dedicated Employer Coronavirus Query inbox here.
If the individual is not at work but it has been agreed they can utilise flexible working policies to work from home whilst self-isolating or caring for their children, for example, they should be paid as normal.
4. What if employees do not want to come to work?
Some people may be worried about catching coronavirus and consequently unwilling to come into work. If this is the case you should listen carefully to the concerns of your employees and, if possible, offer flexible working arrangements. Staff should be allowed to work from home where possible.
Employees can also request time off as holiday or unpaid leave but there is no obligation on employers to agree to this. If an employee refuses to go to work without due cause, you are entitled to take disciplinary action.
5. What if the business is affected by coronavirus requiring less staff?
The needs of the business should be considered on a case by case basis. It is possible to direct staff to take their annual leave at a designated point which may cover some of the problems, although care must be taken to provide the correct notices as required under the Working Time Regulations 1998.
Staff may have short-time working or lay-off provisions in their contracts that can be utilised, although be mindful of the ability of staff to request redundancy payments after a prolonged period of lay off.
You may also wish to make use of the Government’s Coronavirus Job Retention Scheme (“furlough scheme”) and you can find more information about that scheme in our article here. Furloughing staff involves a temporary variation to contract and you should seek advice on this.
Temporary variations to contract might be possible to agree with the workforce, and, in extreme cases, redundancies may be required. If the company envisages making 20 or more people redundant in a 90 day period, the collective procedure will come into force.
If you require guidance about lay-off and temporary short-time working clauses and policies, variations to the contract, enforcing annual leave or redundancies, please click here to send your enquiry to our employment law specialists.
6. Where can I get further information?
- The government publishes daily updates at 2pm with the latest COVID-19 updates and advice.
- Acas: Guidance for employers and employees from Acas, the Advisory, Conciliation and Arbitration Service, an independent body funded by the Government.
- Government Guidance for Businesses: Information about the three month extension to file accounts.
- NHS: Health-related guidance from the National Health Service.
- Public Health England including, eg, specific guidance for employers, educational and health-related organisations, and an option to receive updates directly.
- Public Health Wales
- Health Protection Scotland
- Public Health Agency in Northern Ireland
- HMCTS: Information for users of Courts and Tribunals.
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 11am on 15 April 2020.
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