I’ll be honest. Whilst Coronavirus (COVID-19) was of course on my radar, I was not prepared to do a bulletin on the subject quite yet. Then three things happened: on 2 March 2020, Public Health England confirmed the widespread transmission of the virus in the UK is now “highly likely”; on 2 March 2020 the Prime Minister called a COBRA meeting to discuss the virus; and finally, the running of the Cheltenham Festival (especially important to many of our retail and hospitality clients owing to our Gloucestershire location) has been called into question.
Owing to the above, I have put together a Q&A for employers about what to do should a worst-case scenario occur.
Question: Can I ask an employee to stay away from the workplace if it is suspected they have been exposed to Coronavirus?
Employers have an overriding duty to protect the health and safety of their employees. If it is suspected that an individual may have been exposed to coronavirus, then it may be sensible for employers to ask the individual to work from home during the suggested 14 day isolation period. If it is not possible for the employee to work from home, an employer may be able to enforce a request that the employee stay at home during this time, without the need to work. Employers must ensure that such a requirement is not discriminatory for any reason such as the ethnicity of the individual involved.
Question: Should the employee be paid during this period at home?
This is a question that has a multitude of answers. If the individual has been diagnosed with coronavirus then they will be unfit for work and you should follow your normal sickness absence procedure. This may be payment of SSP or company sick pay, depending on what is in the contract of employment.
The difficult issue arises where it is only suspected that the individual may be exposed, but they believe they are fit and ready for work. ACAS guidance on the topic states that where an individual follows government advice and self isolates, there may be no requirement to pay them. What must be considered, however, is a situation where the individual ignores that advice and is subsequently sent home by the employer. In this scenario, as the individual is “ready and willing to work” they should be paid in full for the period they are sent home.
Question: My employee has a pre-booked holiday to Italy/China, can I stop them going?
Putting the huge employee relations issue aside (the employee would likely lose a substantial amount of money if you cancel their leave), it would be a bad idea cancelling annual leave for employees. Whilst employers do of course have the right to cancel employees leave with the correct period of notice, there is a risk of a breach of trust and confidence or even a discrimination claim by doing so.
Question: What do I do if one of my employees is diagnosed with Coronavirus?
Aside from the measures above regarding payment and suspension, it is worth alerting all employees that there has been a diagnosis in the workplace. Point them to the NHS website on coronavirus as to symptoms they should be looking out for. Public Health England (PHE) will likely get in touch with you to identify who has been in contact with the individual and discuss the workplace setup. It is very unlikely that PHE will require that the workplace is closed, perhaps apart from schools or care homes. However, you should follow all instructions from PHE at all times.
Question: Is there anything I can do to prepare for a potential diagnosis in the workplace?
A lot of companies have a disaster recovery plan in place in case of an office fire/flooding/power cut etc. Whilst such plans mainly relate to IT matters, we can use the basis of this plan to prepare for a diagnosis:
- Have a point of contact whose responsibility it is to keep all employees up to date via an agreed communications plan
- Identify those key positions in the business which are essential for business continuity and ensure measures are in place to cover these positions in a worst case scenario
- Review relevant insurance policies
- Ensure all emergency contact details of employees are up to date;
- Consider any work travel plans, especially to highly infected areas, and whether travel is essential;
- Give out hand sanitisers and tissues to staff
- Review which/how many employees can work from home and the effect that will have to the business.
- Are laptops are available for employees or are there enough Citrix licences or other remote access tools available for workers?
Question: Is there anything else we should be doing?
Pay special attention to any potential acts of discrimination, especially against Chinese or Italian workers. Unfortunately there has been a reported rise in “office banter” against such workers and failure to address this could lead to employment tribunal claims in the future.
Employers may find that where there is a local school closure, employees need to take time off work to deal with certain unexpected or emergency situations affecting their dependents. Such time is allowed under the Employment Rights Act, however any time taken off should be reasonable and is unpaid.
Finally, keep in mind the duty owed to pregnant workers and listen to any concerns they may have in respect of the virus.
Breaking News: “as we were about to publish this article the Prime Minister has confirmed that Statutory Sick Pay will be payable from day one during the coronavirus outbreak. Keep an eye on our twitter account @BPE_Solicitors where we will provide further information on this breaking story”
NHS guidance on Coronavirus can be accessed HERE.
ACAS has provided further advice for employers which can be accessed HERE.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.