This week has witnessed Coronavirus (COVID-19) cases soar worldwide. With stock markets hitting record lows, schools closing down and many companies axing business trips, it is important for employers to understand how best to deal with any disruptions and employee issues arising from this fast-moving situation, in an appropriate and proportionate way.
Can employees who self-isolate get paid as usual?
If employees are absent due to sickness caused by Coronavirus symptoms, this is relatively straightforward for employers – they should follow rules for statutory sick pay (SSP) and sickness absence and sick pay policies which are already in place within the business, treating the sickness absence like any illness.
Where employees have been asked to self-isolate by their employer, they should be paid as usual. However, if an employee has been instructed by a medical professional to be in isolation, or is stuck abroad, or chooses to self-isolate, the situation is more complicated. There is no legal obligation to pay the employee, unless there is a policy or contractual provision which requires it, or SSP applies. In that context, employers should consider if other policies may contain relevant provisions, such as a travel policy if the reason for non-attendance relates to the employee having travelled abroad, for example. The most common situations are considered in more detail below:
- If the employee finds themselves stuck abroad or in isolation because they were travelling for work, they will likely have a reasonable expectation to be paid and should be paid for the period they cannot work.
- If the employee was travelling on holiday or for another personal reason, and can’t get back to attend work due to travel restrictions or quarantine, they should continue to be paid holiday until the end of holiday period, then the employer should consider whether there is a relevant policy or contractual provision which would create an obligation to pay – if not, there is no entitlement to pay. Employers are advised to consider if the employee can work remotely and offer this if possible and if not they can offer paid or unpaid leave (subject to the employee having sufficient holiday entitlement left).
- If the employee is in isolation because they are following Government guidelines, or medical advice, unless there is a policy or contractual provision entitling them to be paid in those circumstances, there is no obligation on the employer to pay sick pay. However, the UK Government guidance advises that it is best practice to pay employees in these circumstances and this is consistent with ACAS guidance. From a practical perspective, an employee facing two weeks of unpaid leave may be inclined to come to work and not declare that they have been advised to isolate, so as not to lose money, which may cause the employer a much bigger and more widespread problem than a relatively small number of employees being paid during a period of isolation. Employers should therefore consider how their decisions may impact employee behaviour, and assess the risk to the business of not paying an employee in these circumstances. It is also sensible to consider if these employees can work from home or another location, or to offer that they take the time as paid holiday, if home working is not viable.
- Where an employee needs time off to take care of a dependant, they are entitled to a reasonable amount of unpaid time off. Employers should check if they have policies or provisions in their employment contract which deal with these situations. The employee may also be provided the opportunity of taking paid holiday or working from home. In reality, if an employee is caring for someone with or suspected to have the virus, the above issues relating to isolation will also be relevant and the employer will normally prefer the employee stays at home.
- Treat employees consistently so what is offered to one person who self-isolates, should be the same as offered to others. The ability to work from home will obviously affect this and it is not something every employer may be able to offer to all employees. However, if, for example, working from home is not an option, if an employer offers some employees paid time off and refuses to pay others, that could expose the employer to claims, such as discrimination, depending on the particular circumstances.
Before making a decision about pay, employers should always consider whether flexible working could be arranged for affected employees which will benefit both employee and employer.
What should employers do to protect their employees?
Employers owe a duty of care to their employees under the Health and Safety at Work Act 1974. This means they need to take reasonable precautions to protect the health and safety of employees, which will include (without limitation) asking employees returning from high-risk areas to stay away from the office for the recommended incubation period, or sending home employees reporting symptoms of the virus. Employers should keep up to date on a daily basis with the advice provided by governments as this situation develops.
Basic health and safety provisions should not be ignored, such as provision of hand sanitiser, ensuring there are adequate hand washing facilities in the workplace and provision of tissues.
Employers should also communicate with employees. Not only does this ensure that essential information is disseminated throughout an organisation, but it also sends a positive message that the employer is aware of the situation, takes it seriously, cares about staff wellbeing and is taking reasonable steps to protect employees and the business. An email or notice reminding employees of the symptoms, not to come to work if they feel unwell, any relevant travel information if workers are abroad and recommended hygiene practices should be sent and updated if the situation changes. Employers should also update employees with any changes to homeworking policies or practices, as a result of the virus.
If employees or other visitors to the business have been travelling, a risk assessment should be carried out to understand what risk, if any, those persons pose to employees and to allow appropriate safeguards to be put in place.
Employers may also want to consider temporary changes to other policies, such as any usual policy they may have encouraging use of public transport, where it be in the current circumstance might be preferable, and reduce the risk for employees, for staff to travel on foot or by taxi. At the least, a review of relevant policies across the business is recommended.
Special consideration should be given to employees at high risk, such as those with weakened immune systems or other pre-existing medical conditions. Simply sending them home could constitute disability discrimination and before taking any steps, a risk assessment should be carried out, in consultation with the employee and, if appropriate, with medical advice too.
How else can employers protect their business?
Disruptions lasting for an uncertain period can have a huge impact on the business and could be devastating for organisations, particularly if businesses do not assess the risks now, and plan accordingly. Employers, where possible, should consider improving their infrastructures to enable more home working and flexible working, where the type of work permits this.
However, it is not as simple as just sending everyone home with their personal device and log in details. If employers are setting their staff up to work from home, they should be aware of the health and safety related duties and carry out the required risk assessments applicable to home working. Where businesses do not have sufficient devices to issue to all employees, they may wish to provide access to systems through an employee’s own device, and, if doing so, a review of the employer’s bring your own device to work policy and other relevant IT policies and systems is essential to check they are fit for purpose. Beyond the employment law issues, businesses should also ensure that introducing home working does not jeopardise data security and leave the business exposed to other harmful threats and legal claims.
Remote working and agile working may not work for all industries and job roles, but can be of great assistance for some to allow a business to continue operating when attending the workplace may become impossible.
To discuss any concerns or questions arising from this alert, for a review of your policies and procedures, or for specific legal advice on particular circumstances, please contact our partners Sarah Chilton or Beth Hale.
