As the number of confirmed cases of coronavirus continues to escalate, this article provides a Q&A on employers' duties to their workers, now and if the disease affects their workplace

The number of people confirmed worldwide to have contracted COVID-19, or coronavirus, is escalating at an alarming rate, raising a number of serious concerns for employers. The outbreak has hit Scotland, and the UK Government is warning that the spread could lead to a fifth of workers being absent at one time. In light of current events, employers should have plans in place on pressing areas such as employee absence, travel and workplace hygiene.

What steps should I take to prevent the spread of COVID-19 within the workplace? 

In the current crisis, businesses must take steps to ensure there is good hygiene in the workplace and that working practices do not impose undue risk to employees. Employers should review hygiene systems to ensure they provide appropriate protection. Consideration should be given to providing training or communications to staff about why improved cleanliness practices are required.

It’s also vitally important to ensure you are regularly consulting official Government advice as the issue develops. Current NHS advice can be found at: www.nhs.uk/conditions/corovirus-covid-19

What changes should be made to company safety and hygiene policies?

Businesses should consider increasing the number of times a day hard surfaces are cleaned, particularly phones, touch screens and door handles. Staff need to be encouraged to wash their hands regularly with soap, and to carry and use tissues and sanitizing hand gel. As and when a vaccine is produced, it will be worthwhile for employers to carry out a cost and benefit analysis for offering injections to the workforce. It’s also important to do a risk assessment to identify any higher risk groups, such as those who have a high level of contact with each other or have pre-existing conditions, which might render them more vulnerable to the virus.

Should I be telling staff to work from home, and what should I do if an employee wishes to self-quarantine?

The hardest thing to manage during the COVID-19 outbreak is likely to be employee fear, particularly if there is public consensus that staying at home is safest. Employees should be required to attend work as normal, unless there is a particular risk posed in the workplace or in getting to and from the workplace. Employees should be encouraged to follow Government advice in relation to self-imposed quarantine, particularly where they have recently returned from a high risk area. It would be good practice for employers to consider requests to work from home during the crisis, and also to consider flexibility to commute outside rush hour particularly for those employees who are pregnant or who have weakened immune systems.

A member of staff has expressed concerns that they are experiencing symptoms of the coronavirus – what next?

If there is an identified risk that an employee may have been exposed to COVID-19 then it is understandable and advisable, in light of an employer’s duty to protect the health and safety of other employees, that the employer would wish to keep that employee away from the workplace until the risk has passed. It is to be hoped that in most instances good sense will prevail, and where there is a risk, employees will be persuaded to remain at home. This will be made all the easier if the employer is prepared to continue payment of salary or wages pending a medical diagnosis.

What should I do if a member of staff is confirmed as having the virus and has recently been in the workplace?

The current advice from the Government is that in such circumstances the employer should contact the public health authority local protection team to discuss the situation, identify the people who have been in contact with the individual and discuss any actions or precautions that should be taken. A risk assessment will be undertaken by the health protection team, and advice to the employer will be based on that assessment. Currently Government advice is that closure of the workplace is not recommended. A kneejerk response risks demonising the sick individual in circumstances where it may not be down to them at all.

An employee has returned to work after visiting a high-risk area and is feeling unwell. As an employer, can I tell them not to come to work?

Unless an employer has an express provision in the contract of employment permitting an employer to suspend an employee where they expect that they pose a risk to other staff, doing so is likely to be a breach of the contract of employment. On any view, any such suspension would have to be on full pay pending a diagnosis of infection or the employee having been specified by the Government to undergo a period of self-isolation. In the latter scenario, it is arguable that the employee has a deemed incapacity and should refrain from working, or alternatively, stay away from work having required to do so with a view to the prevention of infectious diseases. In those circumstances they would be entitled to statutory sick pay. Health Secretary Matt Hancock has said: “Self-isolation on medical advice is considered sickness for employment purposes. That is a very important message for employers and those who can go home and self-isolate as if they were sick, because it is for medical reasons.”

Following the Government’s announcement that it will bring forward provisions under coronavirus legislation to provide for the payment of statutory sick pay from the first day off work for employees who are self-isolating, I’d strongly encourage employers to ensure they’re up to date with current legislation around statutory sick pay as this ever-changing situation continues to develop.

How do I prevent a possible rise in cases of malingering?

During the crisis, employers will face a conflict between the need to keep genuinely sick employees away from the workplace and the need to prevent unauthorised absence. However, in these circumstances, concerns about whether someone is a malingerer should give way to the very real need to prevent the spread of the disease. Workplaces where there is a culture of encouraging employees to struggle in when they feel sick will need to change their approach, and a failure to do so could expose them to claims for breach of contract. In reality, if an employee calls in to say they are not feeling well and are not coming to work, that is enough to initiate the sick pay arrangements.

Should I halt all business-related travel given the current crisis?

Employees should only be asked to travel to high risk areas – particularly where the Government has advised against this travel – if it is unavoidable or absolutely necessary. They cannot be compelled to do so. The employer must check whether their travel insurance will still provide cover for treatment and medical repatriation, and must also look into whether local care is available or suitable. Specialist travel protection from a third party is also essential if the employee does decide to go.

A member of staff has been quarantined abroad and is unable to return to work – what should I do as an employer?

In such circumstances it is open to the employer to continue paying the employee. It is likely that employees will argue that the situation was outside their control, and there will be an expectation that they will receive full pay. However, it’s open in those circumstances for the employer to treat the absence as a deemed incapacity and to pay only statutory sick pay.

Do I have a responsibility to keep my workers informed as the coronavirus outbreak develops, and where do I seek advice?

It is crucial for a business to keep itself and employees informed about the outbreak and related health risks. Make sure you have a means to keep abreast of Government advice on current issues as it develops. This can be an internal system or one which has been established through a third party such as a risk management business. Current NHS advice can also be found online. It’s also vital practice to have a reliable and effective system for communicating with employees. It should include contact data – email, work telephone, personal telephone and address – which is updated on a regular basis.

If the situation worsens and we are considering closing one of our sites, do we have the right to lay off staff in these circumstances? Are we obliged to continue paying them?

In some sectors, employees’ contracts of employment may contain “layoff” provisions which give employers a contractual right not to provide employees with work for a short period of time, usually with a view to avoiding redundancies. Employees can be laid off without pay where there is a contractual term to this effect, but they may be entitled to a statutory guarantee payment from the employer. Where there is no contractual provision it is always open to an employer to try to agree a period of layoff; alternatively, if closure of a site is being considered, the employer will be faced with a redundancy situation.

 

The Author

Martin Stephen is a partner and accredited specialist in employment law at Wright, Johnston & Mackenzie LLP

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