4th March 2020

COVID-19 – what employers need to know

Employment Lawyers

With the situation changing by the hour, many employers are understandably unclear about the scenarios that may arise due to the global outbreak of COVID-19 and in particular how it will affect their workforce. A number of employers have publicly announced that they will pay all workers who are off work due to the virus, but not all employers may be in the financial position to do so. Pay for absent workers isn’t the only issue employers need to consider and as the situation develops the list of “what happens if” is growing exponentially. We’ve summarised below our answers to what we believe are the FAQs employers will need to be prepared for.

What’s the first thing we should be doing?

Communication is key. Workers will no doubt be affected by the constant flow of media reports about the worsening situation and, as a result, be concerned about what the personal impact on them might be. Make sure you have a designated person or team within your organisation considering all of the potential business consequences of the spread of COVID-19, including your workforce. Once a plan has been formulated, communicate that to your workforce as soon as possible. If you’re in a position to create an official policy, that’s ideal, but a simple all staff communication is enough to get the key messages across. Make sure you emphasise the fluid nature of the situation and that all guidance and internal protocols will be subject to ongoing review and change. When such changes do occur, communicate those as swiftly as possible. Keep the dialogue going to assuage concerns and minimise uncertainty as much as possible.

All employers will no doubt be considering their Health and Safety obligations to minimise the risk of exposure and contamination in the workplace, including all individuals present at a workplace following best practice for hygiene and reducing the risk of spreading the virus. You have a duty to ensure the safety, as well as health of your workforce and those who may be affected by your work activities. That includes managing and mitigating any safety risks created by arrangements put in place to address the primary risks associated with exposure to the virus. For example, the plans you put in place may result in a reduced work force, you could find people having to do jobs or tasks they are unfamiliar with meaning you may need to consider temporary resourcing or training needs; or people may be willing to work longer to cover, making compliance with the Working Time Regulations and arrangements for managing the risks of fatigue relevant. So, the implications of any plans you do put in place must be fully considered across the business and may need further action.

Should we be restricting business travel?

The short answer is yes, if you have workers intending on travelling to any places which are considered to be highest risk, such as China, Iran, parts of Italy and South Korea (Category 1). Employers have an implied and express duty to safeguard the health and safety of their employees. The list of Category 1 places is, of course, subject to change, and there will also be other countries where caution should be exercised and a risk assessment should be undertaken before business travel is authorised (Category 2). From a reputational perspective, businesses will also want to consider how any business travel may be perceived at this high risk time by customers, clients and wider stakeholders.

What about personal travel?

It’s unlikely that employers will have any contractual (or indeed policy) basis to seek to regulate where workers travel during time off. However, there may be legitimate business reasons for putting rules in place to prevent staff from travelling to Category 1 or in some cases Category 2 places, including reducing the risk of infecting colleagues on their return. The more compelling the underlying justification for such restrictions, the lower the risk will be of any employees seeking to argue that such rules are unreasonable. At the very least, employers should be advising staff to ensure they are aware of the Government’s current guidance and where employers wish to go further and issue formal restrictions on personal travel, legal advice should be sought about the extent of those restrictions and how to minimise any risks associated with doing so.

What is self-isolation?

Sounds like an obvious question, but there’s some very detailed Government guidance which should be shared with staff to ensure they know what it involves if it becomes necessary. In essence, it means that: “you or the person you are caring for should remain in your home, except for getting medical care. Do not go to work, school, or public areas, and do not use public transport or taxis until you have been told that is safe to do so.”

Who should self-isolate?

This list is ever, changing, but at the moment, the categories are:

People who are waiting for a COVID-19 test result
People who are identified as being a close contact of someone with coronavirus
Returning travellers (depending on where you have returned from you may have to self-isolate even if you have no symptoms)

Employers should not be closed minded and indeed may find that some employees who are suffering from underlying medical conditions may ask to voluntarily self-isolate if they perceive there to be a high risk for them (in some situations this could potentially be a reasonable adjustment under the Equality Act 2010).

What pay is due during self-isolation?

This is one of the most complicated questions from a legal perspective. First, it should be noted that a number of employers are announcing publicly that they will pay all staff who have to self-isolate. A blanket policy such as this may be the route some organisations wish to go down as part of a corporate commitment to minimising the spread of the virus. If employers do so, it would be prudent to put some limitations on that promise from a policy perspective given the ultimate impact of the virus is unknown at this stage and an unconditional and open-ended commitment to full pay for all staff could conceivably result in a substantial financial cost.

Setting aside any specific policies that employers introduce and existing enhanced sick pay schemes, “qualifying workers” have a legal right to statutory sick pay when they’re incapacitated from work. Normally this right is only triggered after three days of absence. However, the Government has today announced that these “waiting days” will not be required for self-isolation due to COVID-19 and that SSP will be payable (assuming the other qualifying criteria are met).

Whether self-isolation counts as incapacity for SSP purposes has been subject to a great deal of legal scrutiny, but in a nutshell the position is as follows:

If someone is unwell due to COVID-19 or indeed any other illness then they will meet the test
If someone has self-isolated but feels well and has no symptoms, they will very likely still meet the test if:
- they are self-isolating on advice from a medical professional (by reason of it being known or reasonably suspected that they are infected or contaminated by, or have been in contact with a case of, COVID-19); and
- receives a written notice from a health professional to that effect.

It is possible that the Government could amend the SSP legislation to broaden out the coverage even further, and given today’s developments regarding waiting days, this may well happen if the situation worsens.

People who self-isolate voluntarily because they are worried about catching the virus, will not be covered unless it could be argued it is a reasonable adjustment for them due to their particular situation.

Some workers, such as zero-hours workers, may not be eligible at all for SPP depending on the terms of their engagement and work patterns.

What if we send people home?

If employers send staff home and it’s not possible for them to work from home, then it is likely that such workers would be entitled to full pay (similar to the situation where employees are suspended on medical grounds).

What else do we need to worry about?

From an employment law perspective, it appears that there may be a number of unforeseen discrimination risks associated with the COVID-19 spread. Employers will be liable for harassment committed by their employees in the workplace, unless they can show they took all reasonable steps to prevent this type of behaviour. With reports of abuse towards Chinese people in Southampton making the headlines, prudent employers will be ensuring that they emphasising their anti-harassment policies and taking swift and appropriate action where any unacceptable behaviour is demonstrated.

As mentioned above, employees with existing medical conditions may have special protection under the Equality Act 2010. Where employers are aware of members of staff who fall into that category, or may do so, they should be proactively identifying whether they have an obligation to make reasonable adjustments now or as the situation develops.

Workers may be reluctant to declare a need to self-isolate or report symptoms where there is a risk they may not get paid. All workers have individual duties under the Health and Safety at Work Act 1974 to take reasonable care for their own health and safety and that of the people they work with. Failure to do so is a criminal offence. They must cooperate with you to allow you to comply with your duties under the health and safety legislation. Any worker who refuses to do so or if the recklessly risk their own health or others risks could be subject to disciplinary proceedings.

Finally, the fast-paced nature of this situation cannot be over-stated. The situation should be monitored on a rolling basis with staff being kept up to date regularly.