It is now clear that the coronavirus is likely to spread widely and the government have given warnings and are making preparations for a pandemic. They consider that there is a risk that up to 20% of the workforce may be off work due to this virus. We are now receiving many enquiries from employers who want to know what they should do and in particular queries relating to travel by their employees. As the spread of the coronavirus in the UK is escalating we set out below some guidance and what employers need to consider.
What are my obligations as an Employer?
As an employer, you have a duty to take steps that are reasonable and necessary to ensure the health, safety and welfare of all your employees, including those who are particularly at risk for any reason.
Your employees also have a duty to take reasonable care of their own health and safety and that of people they work with and should cooperate with you in this regard to ensure you can comply with your duties under health and safety legislation. Employees who refuse to cooperate, or who recklessly risk their own health or that of colleagues or customers, could be subject to disciplinary action.
What should an employer do to protect employees who are most at risk of coronavirus?
You should check guidance from the Department of Health or the relevant public health body on any health conditions that could make someone vulnerable to becoming seriously ill with the coronavirus as employees need to take measures to ensure that you protect those most at risk. It has been suggested that this could be about 19-20% of the population. People at particular risk could include those with weakened immune systems, those with respiratory issues, older workers, and those with long-term conditions like diabetes, cancer and chronic lung disease as well as pregnant employees. These measures could include reassigning staff from high-risk work sites or locations or to enable working from home and if this is not possible to consider asking them to remain at home. Employers are also under special duties in relation to pregnant employees and disabled workers.
Simple precautions to protect your staff’s health and safety:
- Whilst current advice is to limit work trips to the main affected areas such as China, Korea and parts of Italy employers should be advised to review foreign travel advice for each country during the coronavirus outbreak and to limit foreign travel and to consider using telephone or videoconferencing where possible instead.
- Educate staff to understand the symptoms of coronavirus and steps to help prevent the spreading of it. For example, send emails or display posters outlining the current situation and any government advice.
- Conduct a risk assessment of your workforce, consider what measures you can take and identify those most at risk.
- Provide tissues and hand-sanitiser and encourage their regular use. In particular, encourage staff to wash their hands or use hand-sanitiser on arriving in the building after using public transport and after coughing or sneezing.
- Consider displaying posters on “cough etiquette”, hand and respiratory hygiene and safe food practices.
- Regularly clean frequently-touched communal areas, including door handles, kitchens, toilets, showers, and hot desk keyboards, phones and desks.
- Ensure that anyone with coronavirus symptoms (cough, sore throat, fever, breathing difficulties, chest pain) do not come into work. If they have recently travelled back from an affected area or have had contact with someone who has (or with someone infected with the virus), they should self-isolate, contact 111 and get a diagnosis. They should not return to work until all symptoms have gone.
- Keep the situation and government guidance under review. If the situation worsens, you may have to take additional measures such as minimising all work-related travel.
- Consider allowing high-risk individuals to work from home, particularly if their Coronavirus cases are confirmed near the workplace. A more flexible policy will encourage employees with any suspicion of infection to self-quarantine, even if, as will be the case for the majority, no actual coronavirus infection is eventually confirmed.
Do I have to close the workplace to prevent the spread of viruses such as the coronavirus?
There is generally no requirement for employers to close their workplace during an infectious disease outbreak, but you should check guidance from the Department of Health or the relevant public health body on a regular basis.
How do we treat employees who have recently returned from an area affected by coronavirus?
Government advice for travellers from regions affected by coronavirus is that individuals who have travelled from an affected region to the UK in the last 14 days should self-quarantine even if they do not have any symptoms and should call the NHS to inform them of their travel.
The current guidance from Public Health England is that the following groups should self-isolate:
- People who have travelled back from an area where Coronavirus 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 Coronavirus
- Returning travellers from Hubei province in China, Iran, lockdown areas in northern Italy and special care zones in South Korea, even if they do not have symptoms
- Returning travellers from certain other countries or areas, including other parts of China, northern Italy and South Korea, Japan, Macau, Malaysia, Singapore, Taiwan, Thailand, Cambodia, Laos, Myanmar, if they have a cough, high temperature or shortness of breath (even if the symptoms are mild).
If you have employees to whom this applies, you should ask them not to come to work until after the incubation period is over and any symptoms have completely gone.
Can we insist that our employees do not travel to an affected area for personal reasons?
Whilst you can ban work-related travel to areas affected by coronavirus, you should consider carefully before imposing restrictions of this kind. It is sensible to discuss with the employee and to point them toward the current guidance. If they insist and do travel you could institute a period of “quarantine” on the employee’s return and/or require them to work from home for the 14 day period of quarantine.
Can you instruct an employee who has symptoms associated with the coronavirus, to not attend the workplace?
Given your duties as an employer for health and safety and the serious implications for your business, if the coronavirus is contracted and spread in the workplace, you would be justified in instructing any employee with the symptoms associated with the coronavirus not to attend work, and to seek a diagnosis from a medical professional and not return to work until the symptoms have cleared or it is confirmed that they do not have the coronavirus, however, the question may arise as to how they should be paid during such a period, please see below.
What about pay?
This may depend on whether the employee is sick or not. If sick then any entitlement to company sick pay will be governed by the contract of employment. Contractual sick pay normally includes any entitlement to statutory sick pay. Employees without any contractual sick pay may be entitled to statutory sick pay if they meet the conditions. The government is proposing to grant statutory sick pay from the first day of sickness absence rather than after the first three day qualifying period. Employees can declare themselves as sick but many employers require a fit note from a Doctor after 7 days. This may be a problem as the employee may have difficulty in obtaining one and the government is encouraging people not to go to hospitals or surgeries to prevent spreading the virus. The employer should, therefore, be flexible.
Employees who are not sick but are being requested to remain away from work because they have just returned from an area affected from coronavirus or to prevent spreading, may be able to work from home and, if so should be paid as normal. Even if they cannot work from home, they should be paid their normal salary if they are well enough to work but are being requested not to attend. ACAS guidance suggests that it is good practice to treat self-isolation as sick leave because there will otherwise be a risk that employees will come to work in order to get paid, and in turn could spread the virus. The government guidance is that self-isolation should be considered as sickness for employment purposes.
If your employee has been abroad for work and has got stuck through no fault of their own, it would be reasonable to continue to pay their salary as normal until they return (or could reasonably do so).
If employees have been unable to return from holiday, you could choose to pay them (on a one-off discretionary basis), or ask them to take the time as annual leave or unpaid leave. You should treat employees consistently or you may risk discrimination claims.
Can an employee refuse to come to work because of fears of infection?
You should assess the risk of coronavirus regularly, consulting government websites for updates. Consider your staffing requirements and how many people you need in the workplace. It may be possible to allow employees who wish to do so to work from home or to take holiday.
You should, however, be mindful that you might need to require individuals to attend work if other people fall sick and there is insufficient cover. If you do permit remote working or holiday, you should reserve the right to require workplace attendance on short notice, making it clear that disciplinary action could be taken if a refusal to attend work is unreasonable.
What do you do if an employee refuses to come to work? Before any disciplinary action is commenced, the situation should be discussed with the individual, because it may be possible to allay their concerns in some way. For example, if their real fear is the risk of infection on public transport, it might be possible to adjust their hours to enable them to travel outside rush hour.
If the employee refuses to come into work is pregnant or otherwise at high risk, you should tread carefully and may have to be more flexible. Refusing to allow employees to stay at home, or disciplining them for not attending work, could potentially lead to legal claims. For example, an employee might try to claim constructive unfair dismissal if there is a genuine health and safety risk from being required to attend work. However, provided you do not act unreasonably and employees are not placed at undue risk, such claims would be unlikely to succeed.
What happens if schools and nurseries close?
Taking time off to care for a child whether or not they have been infected by coronavirus is clearly not sick leave for the employee. As an employer, you will have to take a view as to whether this absence will be classed as authorised extended emergency leave or authorised leave in which case the employee will not receive pay or whether the employee wishes to take some or all of this time off as holiday and receive holiday pay.
Businesses need to plan ahead. Coronavirus planning should consider monitoring events in each of your businesses’ locations and also those of key suppliers where interruption in the chain would have a significant knock-on effects, as well as looking at the risks and planning mitigating actions and responses. Given the complexities of individual businesses, a one-size-fits-all approach to developing a continuity plan is inappropriate. However, common themes include carrying out an exercise in business continuity, risk assessment and implementation of a proportionate plan for each key business-specific risk (such as supply chain, travel, employee absenteeism, working remotely, quarantining issues, avoiding all travel to endemic parts of the world).
If you need any help or further guidance do contact us on 0203 0085718.