COVID-19 is the most pressing issue across the globe and is causing a great deal of confusion about the actions organisations should and shouldn’t be taking to protect their employees. SA Law’s clear guide will help you take a considered approach, and we will update it as new advice emerges.
What is the current situation?
The UK’s Chief Medical Officers have raised the risk level from COVID-19 to high, and the UK Government has outlined a range of requirements and recommendations for organisations, including:
- Encouraging employees to work at home wherever possible
- Making sure anyone who develops a continuous cough or high temperature is sent home, and follows self-isolation advice
- Frequent cleaning and disinfecting of objects and surfaces that are touched regularly.
The impacts of COVID-19 and the strategies for slowing its spread are having a wide range of impacts on organisations. The key thing to focus on is your legal responsibility to protect employee health and safety, and this can take many forms in a situation like this.
What should I be doing?
Stay up to date with guidance from the NHS, UK Government and World Health Organization. Use it to provide clear communication to employees about what they should be doing and thinking about. You should also provide relevant information about how the situation is affecting your operations and policies. We’ve included some logical policy considerations in this article.
Other logical steps include checking you have correct employee contact details, reminding managers about emergency procedures, and making sure your business contingency plans are working. Also consider a review and update of your sickness absence policies and procedures to cover the present situation.
Should we introduce new hygiene requirements, and are they enforceable?
If adequate hygiene requirements don’t already exist for employees who work onsite, then we recommend introducing sensible precautions in line with UK Government recommendations and NHS guidance (e.g. advice on hand-washing). They are fully enforceable as long as you communicate the new requirements to all employees clearly. Once communicated, any subsequent failure to adopt them may be treated as a disciplinary issue.
What should our approach to employee self-isolation be?
Currently, Public Health England advises self-isolation for those in a number of specific situations, and we recommend employers enforce this as it forms part of your duty of care to all employees. However, one thing to watch is how this works in the context of managing sickness absence and any policies or procedures you have in place. As these policies tend to discourage absence, we recommend a clear communication to employees that self-isolation to prevent the spread of COVID-19 will be treated separately. The Government has already confirmed that SSP will be payable from day 1 of sickness absence, rather than day 4.
What if an employee wants to self-isolate to avoid infection?
If the employee has a disability that puts them at higher risk of infection, then you have a legal duty to make reasonable adjustments to working arrangements, and this would include the ability to self-isolate. There are also stringent guidelines on social distancing that are designed to protect those who are at higher risk of developing severe illness. This includes the over-70s, pregnant women, those with compromised immunity, and anyone with cardiovascular disease, diabetes or a respiratory condition such as asthma. It is highly likely that employees in these situations may request reasonable adjustments to their working life, including the opportunity to work from home. Also, it’s worth bearing in mind that anxiety about COVID-19 may be considered a mental health issue that could require you to make reasonable adjustments.
Should self-isolating employees receive sick pay?
If employees can work at home, you can continue to pay them accordingly. However, those who can only perform their role onsite will naturally be unable to work. In this situation, the Government requirement is that those who follow advice to self-isolate and cannot work as a result will be eligible for statutory sick pay, even if it turns out they do not have COVID-19. Bear in mind that not providing sick pay may discourage employees from self-isolation, even if they exhibit symptoms. It is anticipated that Government advice will soon be that those over 70, or under 70 and in high-risk groups should stay indoors for a considerable period of time (12 weeks or so). If this happens and they are unable to work from home, employers will need to consider their responsibility with respect to sick pay. Further clarity will be required from the Government on this issue but at present it would seem that employees will be treated as though they are off sick and be paid statutory sick pay in the same way as if they were self-isolating for a shorter period.
Should I still request medical evidence during a period of self-isolation?
Most companies require medical evidence such as a GP’s letter after seven days of sickness absence. However, those with symptoms are being urged to stay at home and not to telephone NHS 111 unless their symptoms deteriorate or they are in a high risk category. Whilst those with symptoms are being asked not to attend their GP surgeries, employers are still within their rights to verify the absence. Employers may however choose to be more flexible with their certification requirements during this period, particularly given the strain on NHS 111 and the government advice to remain at home.
Should we be stopping employees from travelling abroad?
On 17 March, the UK Foreign & Commonwealth Office advised British nationals against all non-essential worldwide travel. This applies initially for a period of 30 days. It is therefore sensible to cease all work-based travel during this period. . As for advising employees on their personal travel, you can justify making a strong recommendation against travelling in light of Government advice. If they decide to travel in any event, you should ensure that they are aware of the position in relation to their pay if they are unable to return to the UK and cannot work remotely.
Can employees take time off to help a dependant?
Employees can take compassionate leave if a situation with a dependent demands it. This would include helping someone who is self-isolating, or social distancing if they are in a higher risk category. This would also cover childcare if schools are closed. There is no legal obligation to pay employees who are on compassionate leave, but most employers have their own rules. It may also be possible to take unpaid parental leave to care for children should schools and nurseries be closed. ACAS also has advice for employers.
What if I see signs of discrimination as a result of COVID-19?
There have been reports that Asian people in particular have suffered discrimination at the hands of colleagues. Don’t forget that it’s up to employers to prevent this behaviour. This is a good time to remind people about your equality policy, and perhaps brush up your manager equality training.
Do I need to close the office if someone has symptoms or tests positive?
If an employee tests positive for COVID-19, the workplace does not necessarily have to close but the employer should follow Government cleaning advice.
We are here to help. If you have any questions or would like further information, please contact the authors, Chris Cook or Keely Rushmore.
Disclaimer: All information correct at date and time of publication on 18th March 2020