Update – The coronavirus epidemic: employment issues

The news is currently full of reports about coronavirus.  As it's highly unlikely that the threat of coronavirus is going to disappear any time soon employers will experience various challenges when it comes to managing the situation.  There still isn't much concrete information out there: people can possibly get the virus twice and the incubation period, which was initially thought to be up to 14 days, may well be longer. Confusion reigns!

So what can be done when an epidemic such as the coronavirus takes hold?

Protecting health and safety

Employers are under a duty to protect the health and safety of their employees.  Acas has published advice which recommends simple steps for employers, including:

• keeping everyone updated on actions being taken to reduce risks of exposure;
• making sure that everyone's contact numbers and emergency contact details are up to date;
• making sure that managers know how to spot symptoms of coronavirus and are clear on any relevant procedures for sickness reporting, sick pay and what to do if a colleague gets the virus;
• encourage good hygiene by providing clean places to wash hands with hot water and soap, and giving out hand sanitisers and tissues;
• considering if protective face masks might help for particularly vulnerable situations; and
• considering if any travel planned to affected areas is essential.

Public Health England (PHE) has produced advice on preventing the spread of coronavirus through good hygiene practices. These include:

• washing your hands more often than usual, for 20 seconds, using hot water and soap. This should be done after coughing, sneezing or being in a public place where other people where coughing and sneezing;
• coughing and sneezing into a tissue and throwing that tissue away. If you do not have a tissue, you should cough and sneeze into the crook of your elbow, not your hands; and
• cleaning and disinfecting regularly touched objects and surfaces with regular cleaning products, to reduce the risk of illness spreading to other people. In an office based workplace, this might include keyboards, mice and telephones.

PHE has also issued an updated list of people who should self-isolate for a period of 14 days. This list now includes anyone who has recently travelled from lockdown areas in Italy, regardless of whether they have any symptoms.

The PHE guidance is only advisory and does not have to be followed; however, given employers' duty to protect the health of its workforce it is best practice to make it clear to colleagues that they should not come into work if they fall into one of the at-risk groups identified by PHE and that they are expected to follow the PHE hygiene guidance. If they do come into work they should be sent home.

Communications

Employers need to communicate to colleagues that they are required to follow the PHE guidance on self-isolation and hygiene practices. This could be done via email; displaying signage around the workplace spelling out what the guidance is and stating that all staff are expected to follow it; and putting a link to the latest guidance on their intranet.

Signage is also a good way of informing visitors and customers that they have to follow the guidance too.

In order to keep colleagues abreast of any developments, employers should keep on top of government advice and have effective communication systems in place.

What if an employee is not following the hygiene rules?

If an employee persistently fails to follow hygiene rules, this could cause heightened anxiety amongst colleagues and could potentially be putting them at risk.

Employees are required to follow reasonable instructions from management. Therefore, if it has been made clear that employees are expected to follow good practice procedures relating to hygiene and infection control and an employee still does not follow these, an employer would be entitled to take disciplinary action.

Absenteeism

Coronavirus is likely to result in increased absence either due to actual sickness or the need to self-isolate.

Employers who encourage employees to come to work when they are feeling ill could potentially face claims for breach of contract.

What happens if a colleague who has potentially been exposed to the virus or has been to one of the listed countries insists on coming to work?  Will it be possible to suspend them?  There's an argument that the colleague should remain at home and remain there until the risk has passed, so that the employer can comply with its duty to protect health and safety. It is unlikely to be in breach of the employer's implied duty of trust and confidence to require a colleague to stay at home, provided that it continues to pay them.  It will be very important to ensure that the matter is dealt with appropriately and sensitively, and that there are reasonable and non-discriminatory grounds for concern.  If a colleague refuses to comply and is endangering others by ignoring advice and returning to work, this is potentially gross misconduct.

An alternative to suspension would be to ask the colleague to work from home (if possible) for a period of time.

Should a colleague who self-isolates be paid?

This will depend upon their employment status and/ or what their contract says.

Where an employee is willing and able to perform work in accordance with their contract of employment there is an obligation on the employer to pay wages, unless there is a contractual right not to.  When a suspension has occurred, an employer will have to continue to pay the employee in full.

If an employee self-isolates after travel to a high risk coronavirus area the ideal solution would be for them to work from home, but this may not be possible.  If they are displaying no signs of the virus they will not be entitled to claim sick pay, however it is good practice to treat the time away from work as sick leave, or to agree for the time to be taken as holiday as otherwise there's a risk that the employee will come to work because they want to get paid. Indeed, there is an argument for paying the employee their full pay entitlement as you would if you had had to suspend an employee who insisted on coming in.

Another potential issue is employees claiming that they have coronavirus symptoms and going off on sick leave.

To counter abuse by colleagues, employers can ask for evidence of positive testing for the virus before allowing the employee to claim their entitlement to sick pay, or evidence of where they travelled to/ from.  Businesses should consider amending their policies, to make it clear faking symptoms or lying about where they have been will lead to disciplinary action.

For workers, such as casual/ zero hours workers the general position is that they will not be entitled to sick pay but may, subject to satisfying the qualifying criteria, qualify for SSP.

Sickness absence policies

Many employers have sickness policies in place which are designed to reduce sickness-absence by having management procedures which are triggered once certain conditions have been met. These sorts of policies may have the accidental effect of making colleagues reluctant to self-isolate, as they won't want to trigger the management procedures.

In the interests of protecting health, employers with these policies should consider relaxing them for the purposes of coronavirus self-isolation and infection. This is particularly important for colleagues who are disabled and may be at a heightened risk of contracting coronavirus. Employers have an additional duty to make reasonable adjustments for those with disabilities; relaxing sickness-absence triggered management procedures would amount to a reasonable adjustment in these circumstances.

What if a colleague doesn't want to come into work?

Given the scale of the press attention at the moment it won't come as a surprise if some decide they don't want to go to work for fear of catching coronavirus.  The Acas advice recommends that, in the first instance, an employer should listen to any concerns that colleagues may have.

Employers should try to resolve any genuine concerns. Possible solutions include allowing colleagues to work from home or flexibility to commute outside rush hour. This could be particularly useful for colleagues who are pregnant or who have weakened immune systems.

If a colleague is still concerned and still does not want to come into work, then time off as holiday or unpaid leave could be requested.  However, an employer does not have to agree to this.

The Acas advice states that if an employee refuses to attend work this refusal could result in disciplinary action.  If an employer has tried to allay concerns and offered practical solutions which have been turned down, it is likely that any subsequent dismissal on grounds of misconduct would be fair.

What happens if someone is taken ill while at work?

If someone comes into work having just visited an at risk area for coronavirus, and then falls ill while at work, Acas recommends the following:

• the ill employee should stay at least 2 metres away from other people;
• they should go to a private room;
• they should avoid touching things as much as possible;
• they should use a separate bathroom, if possible; and
• they should use their own personal mobile to call 111, or 999 if they are seriously ill.

Managers and colleagues should be made aware of this procedure, so it can be implemented if necessary.

If someone becomes ill from coronavirus at work, the workplace does not necessarily have to close. The employer should get in touch with their local PHE health protection team who will carry out a risk assessment and give advice on any precautions or actions the employer should take.

What if the workplace needs to be closed?

Employers should plan in case they need to close the workplace temporarily. This is particularly important in light of the emergency COBRA meeting being held today; at present "social distancing" measures are not being phased in in the UK, which could include people being encouraged to work from home, but it is probably only a matter of time before they are. If this is the case, employers need to ensure that colleagues can work effectively from home and that proper communication channels are put in place.

Employers should consider amending contracts to give them the power to lay-off or put colleagues on short-time working to cope with the economic impact of coronavirus. These two measures will enable employers to avoid redundancies.  It will be important to communicate any closure or short-time working arrangement to colleagues as early as possible and, if the business is closed, maintain contact with them throughout the closure.

Time off to care for dependents

With stories of schools temporarily shutting down, employers may be receiving more requests for time off to care for dependents. Employees are entitled to a "reasonable amount of time off" to look after dependents.  This will depend on the nature of the incident and the colleague's personal circumstances but will generally be no more than one or two days.  The time is unpaid.

If dependants become seriously ill, employers will probably be expected to be more flexible when it comes to granting time off.  Indeed, it is rumoured that the Government is going to bring in legislation to allow employees to have time off – we await further information. In the meantime, employers will have to exercise their discretion in such circumstances and may be vulnerable to allegations of discrimination or breach of trust and confidence.

Personal travel

While employers may decide to ban work-related travel to high risk areas it's a different matter with personal travel.  Colleagues may decide to travel to an area listed by the government as high risk.

Before an employer imposes travel restrictions it should consider the risks of discrimination claims.  If personal travel is prohibited to certain countries this may discriminate against colleagues of a particular ethnic origin.  If the employer's reasons for prohibiting travel are legitimate and it acts proportionately in imposing such a ban it will be likely to have a defence to a possible race discrimination claim. However, the personal reasons of the colleague wishing to travel could well be relevant, e.g. to see an ailing relative.  It may be more proportionate to require the colleague to self-quarantine at home once they're back rather than banning them outright from going.

Uncertain times

In this evolving situation it's important that employers keep on top of the latest government advice on coronavirus and adapt it to the practicalities of running their workplace.  Flexibility, understanding the concerns of employees and acting to alleviate them through the implementation of sensible measures are key. England's Chief Medical Officer said that the transmission of the virus between people in the UK was "just a matter of time", so this will be dynamic and evolving.

Trowers' Top tips

Here are a few tips to help you deal with the coronavirus:

• encourage good hygiene;
• treat concerns sensitively and consider flexible working arrangements if necessary;
• publish FAQs;
• be prepared to deal with time off work requests to care for dependents;
• keep on top of government guidance at all times; and
• be fleet of foot as this is an evolving situation.