COVID-19 UPDATE

Coronavirus is a large group of viruses which cause a range of illnesses from the common cold through to more severe respiratory infections such as the Severe Acute Respiratory Syndrome (SARS). COVID-19 is a new illness which belongs to this group of viruses. What are the symptoms?

The following symptoms may develop in the 14 days after exposure to someone who has COVID-19:-

• Cough;
• Difficulty in breathing;
• Fever

The symptoms may be more severe in older people or those with chronic or underlying health conditions.General Housekeeping in the workplaceEmployers may wish to reinforce general housekeeping guidelines to their employees. Examples may include:

• Ensuring employee’s contact details and emergency contact details are up to date;
• Remind employees to wash their hands thoroughly with soap and hot water throughout the day and ensure that there are clean facilities available for employees to use;
• Provide sanitiser gel and disposable tissues;
• Remind employees to use a tissue to catch any coughs or sneezes and ensure that there are sufficient bins available for employees to easily dispose of tissues to discourage for example, used tissues being left on desks or work surfaces;
• Ensure that the work area, common areas such as toilets and kitchens as well as high-contact areas such as door handles and telephones are regularly cleaned with disinfectant;
• Have clear guidance for employees to follow if they become ill at work and make sure managers are alert to and aware of these guidelines;
• Ensure managers have a good understanding of Company policies dealing with sick pay, absence reporting, annual leave, and time off for dependants;
• Consider whether face to face attendance at meetings or the workplace are necessary and consider alternatives such as home working or telephone meetings instead;
• Consider whether there are extra precautions to be taken or adjustments which can be made in relation to vulnerable workers such as pregnant workers, those over 70 or those with underlying health conditions;
• Consider whether business travel is essential and ensure that the Foreign Office travel guidelines are adhered to;
• Keep up to date with the Government guidelines.

What if an employee becomes ill at work?

It is important that employers have a clear and well communicated strategy in place for dealing with employees who may have been exposed to COVID-19 or who become ill whilst at work.

In general, the advice is that employees who become unwell at work should inform their employer and go home. If they need to contact their GP and/or 111 they should try and use their own mobile telephone or computer facilities to do this.

The employee should try to isolate as much as possible by moving away from other people (at least 2 metres away) and if possible open windows to ventilate the area. They should try to avoid touching anything and if they have to use the bathroom they should, where possible, use separate facilities. If an employee does test positive for COVID-19, employers do not necessarily have to close the workplace but should instead following the current Government guidance on cleaning and contact their PHE public health team who will provide further instructions.

Sick pay

The employee will be entitled to Statutory Sick Pay (SSP) if they follow the Company’s sickness absence reporting policy and are incapable of working because:-

• they have tested positive for COVID-19; or
• they are experiencing symptoms of COVID-19 (e.g. a new cough and/or a fever); or
• they are told by a medical professional to self-isolate; or
• they are self-isolating in accordance with the guidelines/advice issued by Public Health England and/or the NHS.

Currently, employees will be advised to self-isolate for 7 days (or until such time as their temperature returns to normal) if they experience symptoms of COVID-19 or, for 14 days if anybody who they live with experiences symptoms of COVID-19.

The Government has announced that it will cover the cost of SSP payable for the first 14 days of COVID-19 related absence for small employers (those with 250 employees or less).

We understand the Government will be introducing emergency legislation which will mean that those employees who are unable to work because of COVID-19 will be entitled to SSP payable from the first day of absence and not from day four as is the present position. However, the law has not yet changed. For those companies who offer enhanced sick pay schemes, it is good practice to pay Company sick pay in the above circumstances.

Fit Notes

Employees can still self-certify for the first 7 days of sickness. After this time, employers are entitled to ask for medical certification.

A new temporary system to replace fit notes for the purposes of absence because of the virus/self-isolation was announced in the spring budget. These online isolation notes can be accessed through the NHS website and NHS 111 online. Employers should accept the isolation notes as evidence to support payment of SSP.

However, as the general advice now is not to contact the service in the first instance (unless symptoms are very severe), employers may wish to consider whether medical evidence is required at all. Indeed the Government has strongly advised that employers use their discretion around the need for medication evidence for a period of absence where an employee is advised to stay at home due to suspected COVID-19.

Do employees have to attend work if they are worried about catching COVID-19

As a starting point, employees do not have the right to take time off because they are worried about catching COVID-19. Employers should listen to the concerns of their employees and may wish to negotiate home working or taking annual or unpaid leave. An employee who does not attend work and who will not agree to attend work can be treated as absent without authorisation and could lose pay or be subjected to disciplinary proceedings.

However, it is important for employers to consider their duties under the Equality legislation when discussing this issue with employees. Employers have a positive legal obligation to make reasonable adjustments for disabled employees. An employee who has an underlying medical condition which amounts to a disability and which makes them more vulnerable to catching COVID-19 (such as an auto-immune condition), may require reasonable adjustments such as home working.

An employer’s requirement for an employee to continue to attend work in a pandemic could be indirectly discriminatory against an employee who has as disability as disabled employees may be less likely to be able to comply with this requirement or would be more adversely affected by it than those employees who do not have a disability. Accordingly, the employer should consider whether such a requirement meets a legitimate business aim and whether that aim can be met in a less discriminatory manner.

Additionally, the Government guidance is that employees who fall into the following categories are strongly advised to work from home:-

• Individuals aged over 70.
• Women who are pregnant
• Individuals aged under 70 with an underlying health condition (being any adult instructed to get a flu jab each year on medical grounds) would be strongly advised to work from home for the time-being. These are listed as:
• chronic (long-term) respiratory diseases, such as asthma, chronic obstructive pulmonary disease (COPD), emphysema or bronchitis.
• chronic heart disease, such as heart failure.
• chronic kidney disease.
• chronic liver disease, such as hepatitis.
• chronic neurological conditions, such as Parkinson’s disease, motor neurone disease, multiple sclerosis (MS), a learning disability or cerebral palsy.
• diabetes.
• spleen issues, for example, sickle cell disease or where an individual has had their spleen removed.
• a weakened immune system as the result of conditions such as HIV and AIDS, or medicines such as steroid tablets or chemotherapy.
• being seriously overweight (a BMI of 40 or above).

The guidance also says that all other workers are advised to work from home, or vary their daily commute and use less public transport, where possible. These employees may wish to self-isolate even before seeking advice. If it is not possible for these employees to work from home, employers may wish to explore other alternatives such as flexible working, use of annual leave, unpaid leave or a career break.

Can employers prevent employees who have been told to self-isolate but refuse to do so from attending work?

Employers may be in breach of their health and safety obligations if they knowingly allow an individual who has been advised to self-isolate to come into work – particularly if there are other employees in the work place who are more vulnerable to infection.

In these circumstances, an employer may be able to suspend an employee who refuses to self-isolate where the medical advice is that they should do this. If there is no express contractual right to suspend, the employer should seek legal advice.

School closures

Employees have a legal right to take a reasonable amount of time off to care for dependants in an emergency situation such as a school closure. Usually, such time off would be for one or two days whilst alternative care arrangements are put in place. There is no right for employees to be paid for this time off but an employer’s policy may provide for paid leave.

This type of leave is not designed to cover longer periods of absence so if an employee is likely to require a prolonged period of absence (which given the recent announcement of school closures for the majority of children is likely), they should negotiate this with their employer as they may be able to take annual leave, unpaid leave, a career break or change their working arrangements to allow, for example, home working, working at a different time, or part time working. However, longer periods of leave may be considered as reasonable if the employee can show that there were no other reasonably workable options and that the employee had to look after the children themselves.

Employees should not be dismissed or subjected to detrimental treatment for taking time off under this right.

If a member of the employee’s household shows symptoms of COVID-19, the employee will be advised to self-isolate for 14 days. Employees in this situation will be entitled to sick pay as set out above.

Can employees be forced to take their annual leave entitlement?

Employers can ask their employees to use their annual leave entitlement at a certain time e.g. if the business is forced to close. If an employer wishes to do this, they must give their employees notice at least twice as long as the period of leave to be taken e.g. if an employer wants their employees to use one weeks’ leave, the employee must be given two weeks’ notice.

Asking employees not to attend work or to work at another location

Employers can ask employees not to attend work but they must pay them their usual salary for the duration of the absence. Employers might be able to ask employees to work at other locations if the employee’s terms and conditions of employment so permit.

This is an unprecedented situation and unfortunately many employers are finding themselves having to close or consider how to reduce the wage bill as they feel the effects of self-isolation and social distancing measures.

We encourage employers to be up front with employees and transparent about the business situation. An open dialogue addressing the options available and seeking agreement with employees about how to deal with these extraordinary circumstances gives employers the best chance of not only minimising the risk of legal claims but also maintaining an employee’s goodwill.

It might be possible to agree with employees a period of unpaid leave or reduced payments if the business has to close temporarily, or shorter working hours if the business can remain open but requires fewer staff.

There are statutory provisions for lay-off and short time working but the relevant clauses are required in the contract of employment in order to implement these. There are also mechanisms within this scheme through which a redundancy is triggered. It is recommended that legal advice is sought if employers find themselves having to invoke lay-off clauses, make changes to an employee’s terms and conditions, or consider redundancies.

Discrimination (other than on the grounds of disability)

Employers should take care not to treat employees differently because of race or ethnicity. Employers are potentially liable for the acts of harassment by individual employees unless they have taken all reasonable steps to prevent such harassment from occurring. Accordingly, it might be prudent to refresh and update equality policies and training.