This post has been updated below to reflect the changes in the UK since publication.
The coronavirus has now spread to an estimated 59 countries and over 87,000 people globally are estimated to be infected (World Health Organisation: 1, March 2020) with many saying the real numbers are much higher due to those without obvious symptoms not being tested.
17 March 2020: Since I first published this article the UK position has changed.
- The Government promises sick pay to be available from day 1 rather than day 4 but regulations are still awaited.
- The Government announced in its budget on 11 March 2020 that those who are self-isolating would be able to access sick pay by contacting NHS 111. Subsequently, this was updated and the position as at 17 March 2020 is that anyone self-isolating following Government guidelines, and who is, as a result of that unable to work, they will eligible for statutory sick pay (provided they meet other eligibility criteria for the pay).
- The Government will reimburse SMEs with less than 250 employees (as at 28 February 2020) for up to 14 days Statutory Sick Pay.
- If someone is self-isolating because they are caring for someone with Covid19 symptoms, they will be entitled to Statutory Sick Pay.
- The rates of Statutory Sick Pay have not changed.
- Employment and Support Allowance will be available from day 1 of illness not day 8 and may be available for self-employed people, not eligible for Statutory Sick Pay.
More measures are expected from the Government in the coming days.
3 March 2020:
The virus, which started in Wuhan City, China, presents mild symptoms in about 81% of people infected, but for a small percentage it can be severe, and even fatal. At present, the world is in a state of infection prevention and control, with many countries putting in place quarantine and self-isolation guidelines for those who may have been exposed to the virus to try to contain the outbreak, other steps include widespread testing and banning large events. The UK has seen reports of offices being closed due to fears that someone may have the virus and with new infection reports pretty much daily, more and more employers are likely to be impacted.
While UK Government advice is still not to close a workplace, even with a confirmed case of the virus, one can see how it is tempting for an employer to do so. Far better to have employees work from home, on the whole, for a few days while waiting for a test result, than have many more potentially infected, which may have a much bigger impact on the workforce, and business more generally.
What is clear is that employers should prepare now for the potential impact of the virus and the isolation and quarantine guidelines on their workforce.
Do I have to pay employees?
There are a number of steps employers should be taking now, to protect themselves and their staff. At present, the biggest disruption to business is likely to be self-isolation and quarantine, but in time, if that doesn’t contain the outbreak, it will be employees being off sick with the virus itself. The latter is easier and more familiar territory for an employer. If a worker is off sick, the employer must follow sickness absence procedures and policies, and pay the worker their entitlement in those circumstances. While for some that may only be statutory sick pay (SSP, which in the UK doesn’t kick in until day four of absence and is also often less than normal contractual pay) for others, it will be normal contractual pay, often for a number of weeks and the policies and contracts applicable to the business should be the first place to check.
The harder issues for employers relate to pay is if someone self-isolates or is stuck abroad, such as in quarantine, and the steps which should be taken to protect the health and safety of workers.
There is no legal right to be paid contractual sick pay, unless the contract provides for it, for employees, who self-isolate, even on medical advice (although SPP may be paid if an employee is ordered to self-isolate or is quarantined and specific criteria are met, namely receiving a written notice to remain in isolation, usually by a GP or NHS 111, although the position is not entirely clear as to what exactly this notice would have to look like). If there are no symptoms, and no written notice, then that person is on the face of it well, therefore does not typically qualify for sick pay, and, may therefore not get paid. There may be policies in place which do entitle a worker to pay, including if they are stuck in another country unable to get back, and these should be checked before any decisions are made relating to pay. Payment of SSP does not solve the issue, however, as many workers will still find SSP to be significantly lower than their usual pay, which could place them in a difficult financial position. If the worker was abroad on business, or has been instructed by the employer to stay at home then they are likely to be entitled to be paid but, again, relevant contracts and policies should be checked.
Guidance from ACAS and the UK Government is to pay employees, but that is just guidance and an employee not being paid, provided there is no entitlement as discussed above, will likely have no remedy against the employer. This puts an employee in a really difficult situation if they have been quarantined abroad and simply cannot get to work.
If an employer is not obliged to pay, employers should still give careful thought to how they approach this issue with those self-isolating. If a worker knows they will not get paid if they self-isolate, they may be encouraged to fail to disclose that they have been in a risk area or in contact with someone suspected of being infected, to enable them to come to work anyway and get paid. That could put others in the workplace at risk of catching the virus, and the wider impact on the business could be much more serious. In that circumstance the employer could be dealing with a localised outbreak, and may need to close down for a short period. The economic impact could therefore be a lot bigger than paying a small number of employees normal pay during a period of self-isolation. There are, of course, other steps to consider, including home working for those in isolation and offering paid holiday subject to an employee having sufficient allowance left instead of unpaid leave or treating a period or isolation or quarantine as sick leave.
What can I do now to protect my business?
With some disruption to business due to illness, self-isolation and employees being stuck abroad, inevitable businesses should start planning now so that they are prepared and can minimise the disruption so far as possible. Reviewing and updating the business continuity plan now is crucial.
Setting people up to work from home is certainly the most logical, and popular, route for an employer. Whilst it won’t work for some, who need specific facilities to work, or whose work is in-person customer based, a reasonable proportion of the UK workforce could do a lot if not all of their job from home or another remote location. Putting in place the infrastructure, and testing it in advance, will be crucial to keeping that workforce going in the event there is more widespread disruption.
Ensuring therefore that you have the proper infrastructure in place is critical which will include making sure there are sufficient laptops, mobile phones, printers and any job specific technology or facilities available for all employees who may need them. But that’s not the only thing to consider: the duty to protect the health and safety of workers extends to home working. Employers should be carrying out risk assessments which will vary depending on the type of work and how long the employee is expected to work at home.
If employees are using their own devices to access systems, check if you have an up to date ‘bring your own device policy’ which covers use of these devices and gives the employer the necessary protections and powers it needs to ensure the safety and security of its data and confidential information. A review of any relevant IT policies is also advisable, before a wholesale move of employees from office to home takes place. Employers, particularly those handling personal data of third parties, should also ensure that whatever systems they are using to enable their employees to work from home comply with their data security requirements, and don’t expose any data to loss or theft. Planning, including an infrastructure, equipment and policy review, is therefore crucial – and the earlier the better.
How to protect employees
Employers owe their staff a duty to protect their health and safety. As part of this employers should communicate with employees to assure them that the employer is aware of the issues, monitoring the situation and taking steps to plan for disruption. The communication should also relay the current Government advice in relation to infection prevention, including in relation to hygiene. As well as communicating advice, employers should make sure there are adequate hand-washing facilities available at the workplace. The advice from Government and health professionals is that regular proper hand washing is the best way to protect ourselves against infection. Providing alcohol-based hand gel and tissues, is also sensible, for staff but also for members of the public who may use facilities, such as in hotels, shops and cafes. In some workplaces, consider if screens between the public and staff are appropriate, to help prevent any spread of infection for those with face to face contact with customers.
Some employees are at higher risk, such as those with asthma, diabetes and heart disease. Be cautious not to immediately treat them differently, even if well intentioned as this may actually constitute disability discrimination. Instead, carrying out proper risk assessments, for all staff, is advisable and, where necessary, this may include discussing appropriate steps with the employee in question and taking specialist medical advice on what steps should be taken to protect an employee, and the business.
Should I cancel work travel?
The Government has not yet made any general recommendations about ceasing travel, except in relation to specific high-risk areas, but many employers are imposing work travel bans as a precautionary measure. This decision will involve a weighing up of multiple factors, including the impact on the business of a ban, but also the impact of a potential period of quarantine for those returning. If travel is to continue, close monitoring globally of government advice and communicating with employees who are travelling will be necessary, together with a review of the travel insurance policy before anyone goes to ensure it provides the necessary cover, in the event something does happen.
This article was written by partner Sarah Chilton and was first published in Forbes on 3 March 2020, and updated on 17 March 2020 as noted above.
