Guidance for Employers on COVID-19

Posted on 05 March 2020

COVID-19 has infected people across more than 80 countries and Public Health England (PHE) has stated that the widespread transmission of the COVID-19 virus in the UK is highly likely. The UK Government has said up to a fifth of the UK workforce may be off sick during the peak of COVID-19. It appears likely that there will be disruptions to working arrangements. This note looks at what employers need to be mindful of and what they can do to protect their employees and business.

PHE is encouraging individuals who have travelled to areas where the coronavirus is present, or certain designated countries or areas, and have symptoms to self-isolate. In addition travellers returning from specified areas such as Hubei in China or certain areas of northern Italy, are being advised to self isolate regardless of whether they are experiencing any symptoms. Individuals who have had close contact with someone who has tested positive for COVID-19 are also encouraged to self isolate. These individuals are advised to stay at home for 14 days in order to minimise contact with others during the incubation period.

The PHE guidance is advisory however employers have a legal obligation to protect the health and safety of their employees at work. Therefore we recommend introducing a policy which is in line with the PHE guidance. Some companies such as Chevron, Crossrail and Twitter are asking employees to work from home as a precaution.  Whilst some employees may be able to work from home during this period, not all roles may allow for employees to continue working during self isolation.

If it is advisable for an employee to stay at home and self isolate (but not because they are ill, or because they fall into one of the risk categories set out in the PHE guidance), and they refuse to do so, an employee may challenge an instruction by the employer that they do so.  However, regardless of a potential right to be provided with work, if an employee refuses to remain at home in self-isolation when reasonably instructed to do so, it is likely that the instruction would be lawful given the employer's duties to its other staff under health and safety legislation.  In these cases, employers may be entitled to take disciplinary action on the basis that the employee has failed in their duty to maintain trust and confidence, to follow a lawful instruction, and to maintain the health and safety of those around them.  However, employers should be wary of suspending staff without good reason to do so – particularly if the employee's remuneration is based on performance (for instance, by way of commission).

Under UK legislation, employees are able to take 'reasonable' time off to look after a dependent in response to an unexpected disruption to care arrangements, illness or an incident at school. There have been some instances of schools being closed due to the COVID-19 virus. In such circumstances, employees should inform their employer as soon as possible. 

It is worth noting that the right to 'reasonable' time off is unlikely to extend beyond one or two days, other than in exceptional circumstances.  The leave is designed to allow employees to make alternative arrangements in relation to caring for dependents.  If, however, it becomes very difficult to find alternative childcare in circumstances where it would be inadvisable for (say) a grandparent to look after a child with a high risk of infection and no other options are available in the circumstances, it may be necessary for the employee to agree to take annual leave in order to cover the absence.

Whilst there is no statutory right to be paid in respect of the right to time off for dependents, there may provisions in the employee contract or handbook that allow for payment during this time.

Equally, an employer may take the view that if the dependent is at high risk of infection, the employee is therefore also more likely to contract the virus, and they should therefore self isolate (see above).

Employers can rely on their usual sick leave and pay entitlements under the relevant employment contract if an employee has COVID-19. If there is no contractual sick pay, then the employee will be entitled to statutory sick pay (SSP).  The Government has recently announced a change to the usual rules relating to SSP to allow workers to claim from the first day of sickness absence, rather than waiting for the usual three day period.  However, this may not be the case if an employee is in self-isolation or quarantine with no symptoms.

Health Secretary Matt Hancock has said that staff who are asked to self-isolate are entitled to take the time as sick leave. Usually, there is no statutory obligation to pay an employee who is not sick but unable to work. However, there are limited circumstances under which individuals who are in precautionary self-isolation are covered by SSP and entitled to receive sick pay. These individuals will be deemed to be incapable of work as long as they are given a written notice from PHE, their GP or 111. However if individuals are not given a written notice or they have chosen voluntarily to self-isolate, it would appear that they would not be entitled to SSP.

It has also been considered that employees should receive full pay when asked to self-isolate by their employer, as their absence is a type of suspension.  It would therefore be theoretically open to an employee to say that although their family or friends have tested positive for the virus, they are feeling fit for work and intend to attend the office – thereby requiring their employer to ask them to stay at home for the wellbeing of the rest of its workforce.

Acas recommends as "good practice" for employers to treat self-isolation as sick leave and to follow the usual policy or to agree with the employee for the time to be taken as holiday in order to minimise the risk that they will come into the office and potentially spread the virus. Employers must also consider their policies for individuals who wish to self-isolate voluntarily, bearing in mind the need to protect the health and safety of the rest of the workforce.

Employers should consider appointing a senior manager with responsibility for monitoring compliance with official published guidance, as well as internal policies, and who has the responsibility to communicate with health and public authorities in the event that a suspected case of the virus is identified in the employer's premises.  They should also take responsibility for communicating with staff.

As employers have a duty to protect the health and safety of their staff, employers should ensure that they communicate advice to employees in line with Government advice in respect of infection prevention and hygiene. Some companies are introducing a no hand shaking policy. Adequate hand-washing facilities should be provided, along with readily accessible hand sanitiser and tissues.

It is worth noting that an employee could resign and claim constructive dismissal if they believe that their employer has not taken reasonable steps to protect the health and safety of its workforce by not introducing hygiene policies or allowing a person who should be in self isolation to come to the workplace.  Equally, if employees do not follow reasonable instructions in relation to hygiene, an employer may be able to take disciplinary action against them.

It may also be advisable to carry out a risk assessment for all staff as it is the employer's duty to provide a safe working environment. Some employees, such as (for instance) those who are pregnant or have a compromised immune system, are at a higher risk of developing severe COVID-19. If an employee has a disability under the Equality Act 2010 that puts them at a higher risk of developing COVID-19, the employer has a legal duty to make reasonable adjustments to the working arrangements of that employee. Employers may wish to consider changing attendance management policies for those who are more vulnerable to contracting severe COVID-19.

If an employee does not want to come into the office due to anxiety around COVID-19, the employer should listen to the concerns carefully. Acas recommends where genuine concerns exist, the employer could offer flexible working or agree to the employee taking annual leave or unpaid leave for an agreed time period.

Employers should also carefully consider any flexible working requests, under which employees may apply to travel outside peak hours to lower the risk of infection.

Employers whose business relies on customer facing roles – such as retail, healthcare or social care – will need to consider what steps they may reasonably take to protect their employees from catching the virus from the general public in the course of their employment.  For example, it may be advisable to put up signs to explain to customers that the business has a 'no handshaking' policy, or to provide employees with masks and gloves (if appropriate and the employees are given the necessary training on how to use masks).

Employers should make clear what employees should do if they are taken ill at work and exhibit symptoms of COVID-19.  The Acas guidance states that they should:

  • get at least 2 metres (7 feet) away from other people
  • go to a room or area behind a closed door, such as a sick bay or staff office
  • avoid touching anything
  • cough or sneeze into a tissue and put it in a bin, or if they do not have tissues, cough and sneeze into the crook of their elbow
  • use a separate bathroom from others, if possible

The unwell person should use their own mobile phone to call either:

  • 111, for NHS advice
  • 999, if they’re seriously ill or injured or their life is at risk

They should tell the operator:

  • their symptoms
  • which country they've returned from in the last 14 days

Employers should consider whether to introduce a business travel ban to minimise the risk of employees being exposed to COVID-19. There are a number of factors to consider, such as the impact of such a ban on the employer's business, and also whether there would be a need for a quarantine period for employees who travel.  Many employers are limiting travel to essential trips only, and others (such as A&T and Citigroup) have restricted all international travel.

We recommend monitoring and adhering to Government advice of any countries your employees may be travelling to, reviewing any business travel insurance and to keep in communication with any employees who are travelling.  If an employee has to travel to a high risk area, employers should ensure that they receive specific advice from a qualified health professional – and if that employee is themselves in a high risk group, employers should think very carefully before allowing them to travel to such an area.

It is arguable that restrictions to personal travel of employees to countries where the risk of infection is high may be justified if they are reasonable due to the employer's duty to protect the health and safety of its workforce.  However, it is unlikely that the employer will have reserved an express right to place restrictions on personal travel in the employment contract.  In the circumstances, it may be more advisable to seek to agree a compromise whereby an employee who intends on undertaking travel to a high risk area will need to agree to self isolate on their return, and, rather than receiving full pay, will only be paid an amount equivalent to SSP for that period if they are asymptomatic and unable to work remotely. Employers should be careful not to restrict travel beyond what has been recommended by the Foreign and Commonwealth Office. It is also worth noting that employers should ensure that they do not discriminate directly or indirectly on the grounds of race or nationality when it comes to restrictions on personal travel.

Employers should ensure that their business continuity plans are up-to-date in order to limit the impact of disruption caused by COVID-19.

Ensure that the infrastructure allows for employees to work from home, where possible, and that employees have sufficient equipment or technology, as required. Employers should also consider that their duty to protect the health and safety of their employees extends to them working from home so it may be worth carrying out risk assessments and updating or introducing policies around working from home.  Employees with work issued laptops should be encouraged or instructed to take them home every evening, in case the workplace needs to shut.  Employers should consider what paper based work, if any, can be given to employees who do not work on computers to minimise disruption to the business. 

Employers should also consider if employees will be using their own devices to access the company systems that there is an adequate IT policy in place. GDPR should also be considered if employees will be dealing with personal data whilst working from home and also compliance with the company's data security requirements.

Employers should ensure that if a key employee on a project is taken ill, the rest of the team has been sufficiently and properly briefed on a regular basis to reduce the need for an extensive handover of work.  Minimise the number of one person teams, and introduce 'buddy' systems if possible and appropriate.

Employers should also consider how best to communicate with staff quickly and efficiently in the event that the employer's place of work needs to close for any reason.  They should therefore ensure that they have up to date contact and emergency contact details for all staff.

We recommend keeping up-to-date on Government advice as information is being updated regularly:

To view our guidance on how to handle any legal, practical and operational issues that you may face should the incidence of COVID-19 escalate, please click here.

We have also set up a dedicated e-mail address for any queries you may have: coronavirus@mishcon.com.

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