Member Article

The spread of coronavirus is continuing to dominate the news with a fifth of the UK workforce expected to be off sick during the peak of the epidemic. As the number of confirmed cases in the UK increases daily, we look at five key issues for employers.

Are employees entitled to be paid for absences linked to the virus?

The Prime Minister announced on 4 March 2020 that employees who are self-isolating on medical advice will be entitled to receive statutory sick pay (SSP) from the first day off work to help contain the spread of coronavirus (COVID-19). This marks a change from the usual rules on SSP, under which employees are not entitled to receive SSP for the first 3 days of sickness.

The change, which is being introduced in emergency legislation and will be a temporary measure only, means that those entitled to SSP will receive an extra £40. The Prime Minister justified the change on the basis that employees who are self-isolating should not be penalised for ‘doing the right thing’ by attempting to control the spread of the virus.

If the employee is not sick, has not been told to self-isolate on medical advice and is able to work but the employer has told them they are not to come into work, then they are entitled to be paid as normal.

What are employers’ health and safety obligations towards employees who are unaffected by the virus?

An employer’s normal duty of care to protect the health and safety of employees will continue to apply. Employers may therefore limit or ban unnecessary business travel to high risk areas to limit the spread of the virus amongst the workforce.

To ensure employers are complying with their duty of care, employers should follow the World Health Organisation’s guidance, the newly updated ACAS guidance and government guidance for employers. The situation is evolving on a daily basis and so it is crucial employers keep a close eye on any developments and respond accordingly.
Employers should also proactively communicate a policy for ensuring employees who have recently visited high risk areas are kept off site. This not only applies to employees but also to those individuals employees may encounter such as suppliers, customers or contractors.

What steps can employers take to reduce the risk to employees?

ACAS has recently published guidance to support employers in the event that coronavirus spreads more widely in the UK. The guidance states that it is good practice for employers to:

• keep everyone updated on actions being taken to reduce risks of exposure in the workplace
• make sure everyone's contact numbers and emergency contact details are up to date
• make sure managers know how to spot symptoms of coronavirus and are clear on any relevant processes, for example sickness reporting and sick pay, and procedures in case someone in the workplace develops the virus
• make sure there are clean places to wash hands with hot water and soap, and encourage everyone to wash their hands regularly
• provide hand sanitiser and tissues for staff, and encourage them to use them
• consider if protective face masks might help for people working in particularly vulnerable situations
• consider if any travel planned to affected areas is essential

How should an employer respond to an employee who refuses to travel for work because they are worried about contracting the virus?

Employees should not be required to travel to high risk areas on business, especially if this would conflict with government guidance.

The situation is not as straightforward regarding employees who are concerned about travelling more generally for example to city centres or using public transport. In these circumstances, employers should adopt a case by case approach. If the concerns are genuine, it may be the employer could offer home working, holiday or unpaid leave as alternatives.

However, this may not always be appropriate, such as where the employer wants the employee to come into work and there is not genuine reason for them not to. Any unreasonable refusal to travel for business purposes should be treated in the same way as a refusal to comply with any other reasonable instruction given by an employer, however depending on the situation at hand, it may be appropriate to consider alternative options such as postponing the trip or arranging remote working.

How can employers prevent potential abuse of the situation?

Unfortunately, there are no set rules to prevent abuse of the situation. Employers should however clearly communicate to employees that they are expected to avoid high-risk areas. Additional measures employers could consider taking include temporarily changing holiday request and approval processes for example, employers may wish to require employees to disclose whether they have recently visited a high-risk area. If an employee intends to visit a high-risk area, an employer may wish to reserve the right to refuse the holiday request.

Employers could also consider sending a clear message to employees that deliberately visiting a high-risk area to take advantage of the additional paid leave could result in any resulting absences being unpaid, and that such behaviour may amount to misconduct which will be deal with in accordance with normal disciplinary procedures.

If you require any assistance on these or other employment issues then please do not hesitate to contact our Employment Team.

Disclaimer

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.