Coronavirus II: Advice for Employers and HR Professionals - FAQs

As of 12th March, a total of 460 people in the UK have tested positive for the Coronavirus (COVID-19) which has now been classed as a pandemic.

As public concern around Coronavirus grows, we have seen an increase in queries from employers asking for advice on how they should deal with various employment issues that may arise as a result of the Coronavirus.  Therefore, please see below for our list of frequently asked questions.

What can we do as a business to protect the health and safety of our staff?

It is good practice for employers to:

1. send round an email/guidance encouraging employees to be extra-vigilant with washing their hands, using and disposing of tissues
2. put up handwashing signs in the toilets, kitchen and any communal areas
3. make sure there are clean places to wash hands with hot water and soap
4. encourage everyone to wash their hands regularly
5. provide hand sanitiser and tissues for staff, and encourage them to use them
6. place hands sanitiser in the toilets, kitchen, communal areas such as reception, meeting rooms
7. if you have the capacity to do so, designate an ‘isolation room’ where an employee who feels unwell can go and sit away from the rest of the staff and privately call ‘111’ before taking any further necessary action
8. consider whether any travel plans to affected areas are essential
9. ensure that no-one is singled out or treated differently because of their race or ethnicity
10. make sure that all staff including managers know what the symptoms of coronavirus are and how to spot such symptoms
11. ensure that all relevant processes and procedure are clear such as reporting sickness absence and sick pay, just in case someone in the workplace develops the virus
12. review any existing Business Continuity Plan and consider whether it is necessary to update this

What do I do if someone becomes unwell at work and it is suspected coronavirus?

If an employee becomes unwell and has recently come back from an area affected by coronavirus or been around someone who has been diagnosed with coronavirus, they should:

1. go home
2. ensure that they remain at least 2 metres away from other people
3. if awaiting transport, go to an empty room or an area behind a closed door, such as an office
4. avoid touching anything
5. cough or sneeze into a tissue and put it in a bin, or if the employee does not have any tissues, advise them to cough and sneeze into the crook of their elbow
6. use a separate bathroom from others, if possible
7. Use their own mobile phone, tell them to call either:
   • 111, for NHS advice or
   • 999, if they are seriously ill or injured or their life is at risk

When on the call the employee should tell the operator:

• their symptoms
• which country they have returned from in the last 14 days or
• who they have come into contact with

What do I do in an employee with coronavirus comes to work?

It is important to ensure staff are advised that under no circumstances should they come into work if:

1. they have COVID-19
2.  they have COVID-19 symptoms and/or
3. they have been in recent contact with someone who has been confirmed as having COVID-19 or who has just returned from one of the high risk countries

In the event that an employee (who has been confirmed as having COVID-19) does come into work, they should be told that they should be immediately isolated from other people and they should refrain from touching anything or anyone.  You should then get in touch with Public Health England (“PHE”) health protection team and they will:

1. discuss the case
2. identify people who have been in contact with the affected person
3. carry out a risk assessment and
4. advise on any actions or precautions to take

What do I do if I need to close the office/workplace?

You may want to plan just in case you need to close the workplace temporarily. So ensure that employees have a way to communicate with you (you should ensure that they have all contact details for their supervisor and line manager) and other people they work with.

One option is to allow employees to work from home.  Where work can be done at home, you could:

1. ask those who have work laptops or mobile phones to take them home so they can carry on working and 
2. arrange paperwork tasks that can be done at home for those employees who do not work on computers

Alternatively, you may need to consider lay-offs and short-time working.  In some situations, you might need to close down your business for a short time. However, unless it says in the employees’ contract or is agreed otherwise, you still need to pay their employees for this time.  This has been dealt with below under the heading

If you think that you will need to do this, you need to ensure that you talk to the employees as early as possible and throughout the closure.

Do we have to pay an employee if they have to self-isolate?

The answer to this question depends upon whether they have chosen to self-isolate or whether they have been TOLD to self-isolate.

The government has stated that if NHS 111 or a doctor advises an employee or worker to self-isolate, they will be entitled to receive any Statutory Sick Pay due to them.

Due to a change announced to the statutory sick pay rules (“SSP”), SSP will now be paid from the first day of absence without the need for waiting days and all employers who employ fewer than 250 employees will be reimbursed by the government any SSP paid during the first 14 days.

This change is temporary and will only apply during the coronavirus pandemic, after which sick pay may revert to the previous position, which is that it is only paid from the fourth day of absence and is not recoverable from the government.

SSP is paid at a rate of £94.25 per week.

If you offer contractual sick pay, it is good practice for you to pay this as the employee is deemed as being unable to work and in most cases contractual sick pay also includes an element of SSP which can be claimed back from the government.

Please note that you may need to be flexible if you require evidence from the employee or worker. For example, they may not be able to provide you with a sick note ('fit note') if they have been told to self-isolate for 14 days. 

But then again, there is nothing preventing the employee from having the fit note collected by a friend/family member and it being posted through their home letterbox, or alternatively having the fit note sent to them via post or on email enabling the employee to send the same to you by email only so no contact has to be made with the actual fit note.  

You may also have to make allowances for the fit note to be sent via text message through pictures on text or WhatsApp.

Therefore, entitlement to SSP only arises when the employee has been told by a medical professional i.e. a doctor or NHS 111 to self-isolate.

What do we do if the employee chooses to self-isolate?

You are unlikely to be able to require employees to take holiday for any period of self-isolation in the absence of a contractual right to do so. As these employees are not "sick" per se, it is unlikely that they will be covered by sick leave.

Where an employee voluntarily remains away from the workplace due to self-isolation without discussing this with the employer, you may be able to consider such leave to be unpaid, although this will depend on the individual circumstances.

Can we make an employee self-isolate?

If you have instructed an employee who, according to government guidance should self-isolate to remain away from their place of work; these employees are likely to be on a period of leave. This leave is likely to need to be paid at full pay by the employer, unless an employer has a contractual right to place the employee on a period of unpaid leave, which is unlikely, however consideration will need to be given to the employees contract of employment.

Can we expect an employee required to self-isolate following travel from a particular geographic area to work from home?

This will all depend on the circumstances such as:

1. whether the employee has symptoms – in which case, they should be on sick leave and therefore not working or
2. whether the employee is able to work from home

You may want to start thinking about whether you need to take any steps to facilitate the possibility of home working which may include ensuring that all employees have a way of logging on to secure systems from home. 

Allowing this will ensure business continuity and also gives the employees security of payment during this period.

If an employee has been told to self-isolate can we prevent that employee from attending our premises?

In short yes. You have a duty to your staff under Health and Safety Law too.  If you knowingly allow an employee/worker who has been told to self-isolate to attend work and come into contact with other people, you may be in breach of those duties, particularly where any of those other employees/workers are more vulnerable to infection for example, pregnant employees and those with long-term health conditions.

In this particular scenario, suspension may be an option where the employee who has been advised to self-isolate refuses to do so.  However, before doing so, ensure that you obtain legal advice as you may or may not have the right to suspend.  

What happens if an employee needs time off work to look after someone?

All employees are entitled to time off to help/care for someone who depends on them, namely a dependant which, in most cases, is usually a child or can sometimes be an elderly parent or relative. 

This occurs in an unexpected event or emergency. With the situation as it is, this would apply to situations to do with the coronavirus. For example:

1. if the employee has children that they need to look after or arrange childcare for because the school has closed for a deep clean and/or
2. to help their child or another dependant if they are unwell or need to go into isolation or hospital

Please note however, there is no statutory right to pay for this time off.  Nevertheless, some employers might offer pay depending on the employee’s contract or its own workplace policies.

The amount of time off an employee takes to look after someone must be reasonable for the situation. For example, they might take 2 days off to start with, and if more time is needed, they have the option of booking holiday or agreeing to a period of unpaid leave.

I have an employee who does not want to come to work due to the risk of the virus, what do I do?

Some employees may feel that they do not want to go to work as they are afraid of catching coronavirus.  In this situation, you should listen to any concerns they may have.

If there is a genuine concern, you must try to resolve it to protect the health and safety of your employees. For example, if possible, you could offer flexible working or alternatively the employee could work from home.

If the employee still does not want to go into the office, you may be able to agree with the employee that they take the time as holiday or unpaid leave. However, you do not have to agree to this.

Following on from all of the above, if an employee still refuses to attend work, it could result in disciplinary action. But please take advice first.

My industry is being affected by the coronavirus and I have limited work for my employees but I don’t want to make them redundant, what can I do?

You need to check the employees’ contract of employment to see if there is a clause allowing you to place the employee on short-time working or lay off.  If the employment contract contains an express clause permitting lay-off or short-time working, then you will be entitled to exercise this right.  However, if there is no such term in the employees’ contract and you lay off the employee anyway, then this will constitute a breach of contract entitling the employee to resign and potentially claim constructive unfair dismissal.

I have laid off and/or placed employees on short-time working previously but there is no clause in the contract allowing me to do this, can I still do it?

If you operate within an industry where, there has been a custom and practice of laying off employees or putting them on short-time working, then it can be argued that you have an implied right to do so. However, before deciding that such a term is implied into an employees’ contract, there must be a custom of laying-off within the business i.e. it had to have been done before, meaning that the custom is both "reasonable, certain and notorious"; and such that "no workman could be supposed to have entered into service without looking to it as part of the contract".

This is a strict test and you should be confident that you can satisfy it before relying on an implied term to lay off employees.

I have an employee who has tested positive for coronavirus what can I communicate about that employee to the wider workforce?

Personal data concerning health is a 'special category data'. This means that employers need to ensure that any communication does not include any data about the individual who is absent under UK data protection law.

It would be fine to let employees know that there has been a confirmed coronavirus case within its workforce, it would not be appropriate to provide any details from which the individual might be identified.

If you need any advice or assistance on any of the issues raised in this article, please contact us on 0121 746 3300 or email us at e.hewitt@sydneymitchell.co.uk