06 March, 2020
A coronavirus is a type of virus. As a group, coronaviruses are common across the world. COVID-19 is a new strain of coronavirus first identified in Wuhan City, China in January 2020. The World Health Organisation has declared that this is a public health emergency of international concern and the UK Chief Medical Officers have raised the risk to the public from low to moderate, however the risk to individuals is said to be low.
Public Health England (PHE) recommends that the following general cold and flu precautions are taken to help prevent people from catching and spreading COVID-19, and these should be communicated to employees:
It is not recommended to wear facemasks (also known as surgical masks or respirators) to protect against the virus. Facemasks are only recommended to be worn by symptomatic individuals (advised by a healthcare worker) to reduce the risk of transmitting the infection to other people.
PHE recommends that the best way to reduce any risk of infection is good hygiene and avoiding direct or close contact (closer than 2 metres) with any potentially infected person.
At present, the Government is recommending people that have returned from Hubei Province, including Wuhan, self-isolate for 14 days whether they have symptoms or not. As the outbreak spreads, this guidance may change and employers should ensure they are up-to-date with current guidance and communicate this to employees accordingly. In addition, employers may wish to extend this self-isolation requirement to employees returning from other high-risk areas such as Northern Italy in order to ensure the business remains operational and to comply with their duty to ensure the health and safety of employees.
If employees are not unwell and are able to work from home during a period of self-isolation then employers can require them to do so. If they are not able to work from home and the employer has required them to stay away from the workplace, then the employee should be paid as normal to avoid a breach of contract situation arising. Employers must also broach the subject sensitively with employees to avoid allegations of a breach of trust.
If employees feel unwell prior to attending work then they should follow your usual absence reporting procedures. It is advisable to reinforce these to employees when issuing guidance about pre-cautionary measures, together with details of any employee assistance programmes in place.
It is recommended that employers also communicate a procedure to employees which deals with situations where they become unwell with a fever, cough or shortness of breath whilst at work. This should include notification and isolation procedures.
Employees who are absent from work due to illness will be entitled to contractual sick pay where such a scheme is in place, or Statutory Sick Pay (SSP) where they earn an average of £118 per week.
The Government has announced short term changes to the payment of SSP in order to encourage self-isolation where COVID-19 is suspected. The full details are awaited, but the headline is that SSP will be payable from day 1 of absence rather than day 4.
From a legal standpoint, medical evidence such as a Fit Note is not required in order for SSP to be paid - an employer simply needs to be satisfied that the reason for the absence is genuinely sickness-related. However, employers will generally have procedures in place which require the production of medical evidence to certify absence after an initial 7-day self-certification period.
Difficulties may arise where employees are unable to visit their GP surgery to obtain medical evidence, or there may be a delay in the provision of medical evidence if advice has been taken remotely. In these circumstances, employers should exercise their discretion on a case by case basis as to whether to authorise absence and pay contractual sick pay/SSP without the usual requisite medical evidence.
The current position is that where employees are choosing to self-isolate by reason of personal choice (such as believing they have been in contact with an infected individual) employers are not obliged to pay the employee contractual sick pay/SSP. Again, discretion will need to be exercised on a case by case basis and consideration given to the employee being granted a period of unpaid leave or annual leave where sickness absence is not authorised and paid. This position may change in light of the Government's announcement that SSP will be payable from day 1 for those self-isolating.
Employers should prepare for potential office closures (whether voluntary or enforced) and consider what measures can be put in place to facilitate home working. Similarly, employers will want to consider what home working measures can be facilitated where requests are made for dependant care leave due to school closures or isolation of symptomatic dependants.
Employers are also recommended to review their contractual arrangements with employees, in particular in relation to requiring employees to perform other duties or increased hours to cover absences of colleagues, and laying employees off or requiring them to take holidays in situations where workflow is reduced due to COVID-19. Where absence is resulting in overtime being worked by other employees, it will also be important to keep Working Time Regulations compliance under review.
These considerations should all form part of a wider business continuity/contingency planning process and key measures that an employer intends to take if the situation worsens should be communicated to employees. Line Managers should also be equipped with sufficient knowledge and resources to enable them to manage their teams' concerns by providing reassurance and signposting employees to services that can assist them.
Situations may arise where employers suspect employees are self-isolating disingenuously. In these circumstances employers should probe the reasons for self-isolating and seek evidence that the reasons for self-isolation are genuine. If evidence is found which is suggestive of dishonesty then employees should be disciplined in accordance with an employer's disciplinary policy.
We will provide further updates as the situation develops, however if you have any queries arising as a result of this briefing, or a situation you are faced with in your organisation, please do not hesitate to get in touch with a member of the Employment Team.
For more information contact Katy Parkinson in our Employment & HR department via email or phone on 0333 207 0742. Alternatively send any question through to Forbes Solicitors via our online Contact Form.