We are understandably receiving queries regarding coronavirus and the impacts it is having on employers and their businesses. The following FAQs are intended to be for general information purposes. If you require specific legal or professional advice, please contact us.
Please note, Government guidance (and the law itself) is developing rapidly as steps are being taken to reduce the increasing risks. The information contained in this document is therefore based on the information available to us and the law at the date it was written, namely, 5th March 2020.
- Should I be addressing the threat of coronavirus with our employees?
As an employer you have a duty to take reasonable steps to ensure employee health and safety. It is therefore important to implement preventative measures to ensure that you are taking the risk of coronavirus seriously, and that you are making a conscious effort to minimise coronavirus risks.
- What, if any, precautionary steps should I be taking to give assurance to my employees about coronavirus and protect my business?
- Endeavour to keep staff updated on any actions you are taking to reduce the potential risk of exposure in the workplace.
- Ensure that you have up-to-date contact numbers and emergency contact details for employees, and that employees have up-to-date contact numbers for management.
- Make sure everyone is aware of the symptoms of coronavirus and are clear on any relevant processes or procedures for sickness reporting and letting you know if they have been told by their GP or NHS 111 to self-isolate.
- Consider whether any planned business-related travel is essential.
- Remember that you must not discriminate against any employee e.g. because of their race or ethnicity, whether intentionally or otherwise.
- Ensure that there are clean places for staff to wash their hands with both hot water and soap, and make sure that you encourage them to do so regularly. You might also consider providing hand sanitiser and tissues. If necessary, consider protective face masks for any employees who may have to work in vulnerable environments.
- Plan for employees having to work from home if possible. This may involve putting measures in place for remote access to your IT Systems or having employees put aside work that they could do from home if they had to.
What rights to sick pay are my employees entitled to if off due to coronavirus?
If an employee has coronavirus and is unfit to work, then your usual sick leave policies and their sick pay entitlement will apply, just as is the case with any other illness.
However, the Prime Minister announced on 4th March that, as part of the government’s emergency legislation, employees are to receive Statutory Sick Pay (SSP) from their first day off work instead of the fourth day. This is part of the government’s plans to stem the spread of coronavirus and prevent individuals who are sick (or must self-isolate – see below) from being “penalised”.
The sick leave and pay provisions in your employment contracts will not need to be revised to reflect this change but we would advise communicating this change with all staff. We will be drafting wording that you can use to do this once with have full details of this change to the SSP rules.
What is the entitlement for those in self-isolation due to coronavirus?
Government advice has changed from the initial guidance issued which stated that SSP was advisable but only discretionary in self-isolation cases.
The government now states that, if NHS 111 or a doctor advises an employee to self-isolate, then they will be entitled to SSP which would need to be from their first day off work due to the change in SSP rules.
This means that, if an individual has been medically advised to self-isolate, then they will be deemed to be incapable of work and entitled to statutory sick pay. If the employer offers contractual sick pay, then would be good practice to provide this but:
- The law (currently) only stipulates an entitlement to SSP; and
- We would advise obtaining the employee’s agreement to treat self-isolation as sick leave under their employment contract as this will help to avoid future disputes about whether an employee’s contractual sick pay had been used or not. If you will be offering contractual sick pay when an employee self-isolates then we can provide you with a letter of agreement for your employee to sign.
Further guidance on self-isolation can be found at the following link:
- What if an employee can’t provide a fit note for coronavirus?
Employers will need to be more flexible than usual in respect of any evidence of sickness which you require from employees as individuals are being told to stay away from GP surgeries and hospitals if they suspect they might have coronavirus. Furthermore, if an employee has been told to self-isolate and stay away from their GP surgery, then they may also be unable to immediately provide a self-isolation notice from a doctor or NHS 111 (see below). The employee must still comply with your sickness procedures and let you know as soon as possible if they cannot work, the reason and for how long they are likely to be off for.
- What happens if an employee chooses to self-isolate due to coronavirus without being told to?
If an employee chooses to self-isolate off their own back without being told to self-isolate by a doctor or NHS 111, then they are not entitled to SSP. Employees must have been given a Public Health England (PHE) self-isolation notice by a doctor or NHS 111 rather than simply staying at home because they’re afraid. Self-isolating without a self-isolation notice could therefore amount to unauthorised absence but we advise employers to be sympathetic and consider the circumstances of each case before taking disciplinary action. For the avoidance of doubt, an employee who chooses to self-isolate without a self-isolation notice would not be entitled to SSP.
- What are employees entitled to if they cannot attend work because they have to look after a dependent with coronavirus e.g. if their child’s school closes?
If an employee needs time off work to look after a dependant, they are entitled to time off for emergency situations or unexpected events. This includes situations where a dependant becomes sick, has to go into hospital or isolation and needs help. It also includes situations where their child’s school is forced to close due to coronavirus fears and they need to provide/arrange childcare.
There is no statutory right for this time off to be paid, unless the employee’s employment contract or your workplace policy provides that it should be.
The amount of time off that an employee may take to look after someone must be reasonable in the circumstances. For example, they could take 2 days off to initially deal with the emergency and consider booking further time off as holiday if needed. However, what is a reasonable amount of time off is likely to considered longer than usual in the current situation.
- What can I do if I have an employee who does not want to come into work due to coronavirus?
Some employees might not feel like they should attend work due to fears of catching coronavirus. As an employer, you should not be dismissive and should listen to any concerns. If they are genuine, you should try to resolve them to protect the health and safety of your employees, e.g. offer flexible working where possible. If they still do not want to attend work, you could allow them to take time off as holiday or as unpaid leave, but you are not obliged to agree to this. A refusal to attend work when they are capable of working would normally be considered unauthorised absence so could result in disciplinary action being taken.
- As an employer, can I tell employees to not come into work due to coronavirus if necessary?
If an employee is not sick and has not been advised to self-isolate (see above) but you tell them not to come to work anyway (e.g. if you are concerned they have just visited a risk area) then they will be entitled to their usual pay. You could arrange for them to work from home if possible and if they are still capable of working.
- What should I do if an employee becomes unwell with suspected coronavirus whilst at work?
If someone becomes sick in the workplace after returning from an affected area, ACAS guidance states that they should stay at least 2 metres (7 feet) away from others, ideally in another room and avoid touching anything. Remind them to cough or sneeze into a tissue and dispose of it, or into the crook of their elbow. Where possible, they should use a separate bathroom. Preferably using their own phone, they should call 111 (or 999 if its sufficiently serious) and tell the call handler about their symptoms and the affected area which they have returned from in the last 14 days.
- What should I do if an employee comes to work when they have coronavirus?
Firstly, you should note that the workplace does not necessarily have to close but you may decide to. ACAS guidance states that you should be contacted by the local PHE health protection team who will discuss the case with you, identify those who have been in contact with the affected person, carry out a risk assessment and then advise on any actions to take.
- What should I do in the event where I will need to close the workplace due to coronavirus?
You should have a plan in case you are faced with the possibility of having to temporarily close the workplace. You should make sure that staff have a way to communicate with you and other colleagues and make arrangements for staff to work from home where possible. This includes arranging for staff to take work laptops or mobile phones home and organising any paperwork tasks that can be done at home.
Q Do I have to pay staff if I am forced to close my workplace due to coronavirus?
If the business needs to close-down temporarily and for a short time, you should check your employees’ contracts of employment to see if they contain a Temporary Lay Off and Short Time Working clause. This would give you the right to lay your employees off and avoid having to pay them at their usual rate if there is no work for them to do.
In absence of a contractual clause, you may also be able to rely on this rule if it is standard to your industry, or you may be able to agree this with your employees.
If an employee is placed on Short Time Working or Laid Off, then you would only need to pay the statutory guarantee pay in accordance with legislation. If you need to invoke this clause then you should give as much notice as is reasonably practicable and maintain contact with them throughout the closure. This is only a temporary measure and employees will have a right to be made redundant if they are placed on Short Time Working or Laid Off for more than 4 weeks or for 6 weeks in any 13-week period.
If the business needs to close-down completely, then your employees would need to be made redundant and further advice should be sought.
If you would like to discuss any of the points raised in this article, then you can contact our Employment Law Team, by telephone on 01626 202349 or by email at email@example.com. WBW has nine offices across the South West in Newton Abbot, Bovey Tracey, Torquay, Paignton, Exeter, Launceston, Exmouth, Sidmouth and Honiton.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.