What 10 points do employers need to know about the Coronavirus?
1. What is self-isolation?
Self-isolation requires the individual to limit their contact with other people and remain at home for a period of 14 days. Employees may be able to work from home while in self-isolation, but in many industries they will not be able to. For those that can work, employers and employees should check that all equipment, technology and procedures that need to be in place to enable home working are up and running immediately, so if working from home is implemented, there is minimal disruption.
2. Who should be self-isolating?
Public Health England (PHE) has advised that the following people should all be self-isolating:
- people who have travelled back from an area where Coronavirus (COVID-19) is known to be present and have symptoms and are awaiting a test result;
- people who are identified as being a close contact of someone with COVID-19;
- returning travellers from Hubei province in China, Iran, lockdown areas in northern Italy and special care zones in South Korea; and
- returning travellers from certain other countries or areas, including other parts of China, Italy and South Korea, Japan, Macau, Malaysia, Singapore, Taiwan, Thailand, Cambodia, Laos, Myanmar, if they are displaying even mild symptoms.
3. Does the employer have to follow Public Health England (PHE) advice?
Current guidance from PHE is advisory. However, employers have a duty to protect the health and safety of their workforce, and so should make clear that that any employee falling within one of the groups advised by PHE to self-isolate should not come into work. The employer may not have contractual power to require an employee to refrain from attending work. However, in these circumstances, the implied duty of trust and confidence is likely to be regarded as giving an employer the right to issue an instruction to that effect. It should be noted that an employee may resign and claim constructive dismissal where their employer has not taken reasonable steps to ensure their safety, by, for example, failing to prevent a person who should be self-isolating from attending work.
4. What can an employer do to reduce the risk?
Employers should take all reasonable steps to remind employees of what to do to stop the virus spreading at work. Providing and encouraging the frequent use of hand sanitiser and highlighting the importance of hygiene are good examples. Managers should be made aware of the main symptoms and how to spot them, as well as the procedure to follow should an employee demonstrate the symptoms while in the workplace.
5. How can an employer manage work based travel?
If employees need to travel as part of their role, employers should consider if this is absolutely necessary, and whether the purpose of the travel could be achieved by other means, such as Skype, email or telephone. Failing that, is the meeting or purpose of the travel urgent, or can it be delayed until further advice has been issued by PHE? If an employee is due to be sent out on work related business or on secondment to a known risk area, consider whether the relevant assignment is compatible with its duty to safeguard the employee’s health. The employee should also receive a briefing from a medical practitioner before they go.
6. Do employers have to pay employees sick pay if they are not sick, just self-isolating?
An employee who is actually unwell will be entitled to whatever sick pay is payable under their contract of employment.
It has been stated that someone who self isolates because they are given a written notice by a GP or by NHS 111, will be entitled to statutory sick pay. Whether they get full company sick pay depends on the contract of employment. If an employer decides to send someone without symptoms home then the employer is likely to have to pay them full pay.
The position of an employee who self-isolates without symptoms voluntarily is not clear. It is unlikely that an asymptomatic employee who self-isolates without a genuine reason for doing so will have a contractual entitlement to receive sick pay. However, ACAS recommends that it is ‘good practice’ for the employer to treat genuine self-isolation as sick leave because there will otherwise be a risk that employees will come to work in order to get paid, in which case they could spread the virus if they have it.
7. Do employees have to self-isolate if the employers asks them to?
An employee who refuses to self-isolate would breach their own duty of trust and confidence and their personal duty under the Health and Safety at Work Act to take care of their own health and safety as well as the health and safety of others who may be affected by their actions at work.
8. Can employers stop employees going on holiday?
Employment contracts will rarely include a term giving the employer power to restrict an employee’s personal travel plans. However, where the employer can demonstrate it is necessary in order to comply with their duty to protect the health and safety of its wider workforce or those the workforce come in contact with, such restrictions are likely to be regarded as reasonable. Any employer deciding to impose restrictions on personal travel must be careful to ensure that they are not inadvertently discriminatory on grounds of race or nationality.
9. What if an employee refuses to come to work over fears of becoming ill?
First and foremost, the employer has a duty to listen to the concerns of the employee. Certain employees including those with compromised immune systems, those that are pregnant, or those specified by the World Health Organisation as at a higher risk (over the age of 60, or those with an underlying condition such as cardiovascular disease, a respiratory condition or diabetes) are advised to try and avoid crowded areas where they might interact with people who are sick. This could mean the workplace, but also communal areas including lifts and canteens as well as the employee’s commute especially if they use public transport. The employer should consider the employee’s concerns in the light of its obligations to take reasonable steps to provide a safe working environment. ACAS has recommended that where there are genuine concerns the employer must try to resolve these to protect the health and safety of their staff. Options can include working from home or allowing the concerned employee to take annual or unpaid leave.
10. Hosting events
A balance needs to be struck between maintaining business continuity, whilst also addressing the seriousness of the situation that COVID-19 poses. A number of employers have started asking visitors to complete forms upon arrival to declare their recent whereabouts and movements. While this will prove effective, it does creates an additional administrative burden. Employers need to evaluate the level of policing they want to enforce on the situation before deciding how to act. Common sense should be the aim. Ahead of events being hosted either at the employer’s own offices or externally, hosts need to take all reasonable precautions available to them, and inform prospective visitors of what the internal policies of the host employer are ahead of the event (ie asking people to self-isolate if they have travelled to areas at risk, increased hygiene etc). If prospective attendees have travelled to a category 1 or 2 area, are experiencing any possible symptoms, or have underlying health issues, they should not attend. All other attendees, not in these categories can make their own call on whether or not to attend as a result.
This article does not constitute legal advice. Legal advice should be sought to address specific issues. Information on COVID-19 is changing on a daily basis and primary information should be sought from Public Health England.