COVID-19: Briefing for Employers

COVID-19: Briefing for Employers

The content of this briefing is a summary of the laws and regulations in force at the present time (17th March 2020). It is not, nor is it intended to be exhaustive, nor does it contain advice. Specialist advice should be sought in relation to any queries.

The World Health Organisation has declared Covid-19 (a strain of the Coronavirus) to be a pandemic. The situation is developing on a more than daily basis as has been seen by the Prime Minister’s now daily press briefings. Unfortunately, we understand that the pandemic has yet to reach its peak but already we are seeing the impact on our workforces, especially given the current advice to work from home where possible and to avoid other contact unless absolutely necessary. If schools, nurseries and other childcare provisions close then this is likely to impact further on arrangements for employers and employees alike.

We have therefore set out some of the questions which we have been asked, together with a response as to the current position. Guidance from Public Health England should be monitored and followed.

This is general guidance only and is also subject to change. Please get in touch if you require specific advice.

Can an employer require an employee to disclose whether they have been to certain regions?

Yes, an employer can require an employee to declare if they have travelled from an area which is on the list of countries from which a person must self-isolate. Be mindful not to make assumptions or only to ask particular employees as this could be discriminatory.

Does an employer have to pay an employee if they travel to a country on the UK government’s self-isolation list, against the employer’s advice and they are subsequently off work due to self-isolation?

The employee will be deemed to be ‘off sick’. Eligibility for sick pay will depend on the terms of their employment contract. They may be entitled to Statutory Sick Pay (SSP) from day 1 of their self-isolation.

Can an employer instruct an employee not to travel to certain places?

Many countries are now imposing travel bans and flights are grounded and so this may no longer arise. It is doubtful whether an employer could exercise control over an employee to this extent although the employer could advise the employee against travel and remind them of the necessity to self-isolate upon return, potentially only receiving SSP.

Can an employer send employees home?

Consideration should be given as to why it may be thought necessary to send an employee home. Usually, it will only be appropriate to do so if an employee is exhibiting symptoms or falls into a self-isolation category.

If the employee is exhibiting symptoms then it is likely that the employer can treat the employee as being ‘sick’, send them home and pay them in accordance with their contract of employment.

If the employee is in a self-isolation category then it will depend on the circumstances. If the employee does not have symptoms and is able to work from home then it would be advisable to ask the employee to work from home and to pay them normally.

This is also good practice for other employees who are asymptomatic and not in a self-isolation category. The current advice is to work from home where possible and accordingly, employees may be required to work from home and paid normally.

The employee’s contract of employment will also need to be checked. An employer should always take care to adhere to the general obligations to protect the health and safety of its employees.

Do I have to pay an employee who does not come to work because they are worried about the virus?

This will very much depend on an employee’s circumstances. The employer should listen to the employee’s concerns and have regard to the employee’s specific circumstances.

It may be that the employee has an underlying health concern which makes them high risk. Maybe they have a mental health condition which causes heightened anxiety. Such underlying conditions could be a disability in law and therefore the employer should take care to make reasonable adjustments and ensure that the employee is not treated less favourably due to their disability.

Do I have to pay employees who are absent because they are caring for a family member?

Unless the employee is in a self-isolation category, they will not be classed as being off sick.  If possible they should in the first instance be allowed to work from home. If this is not possible, they may be entitled to another form of leave such as dependants leave, annual leave or to agree an alternative arrangement with the employer. It is good practice for the employer to allow some flexibility; for example by not requiring a specific period of notice for taking annual leave.

An employer could require an employee to take annual leave. However, this must be taken in accordance with the employee’s contract of employment and/or the Working Time Regulations which usually requires the employer to give twice as much notice as the period of leave. This may therefore not be practical.

Dependants leave allows an employee to take reasonable time off when it is necessary in order to care for a dependant, make arrangements for care and when dealing with unexpected disruption of care arrangements. This may therefore arise if schools are closed or where Grandparents cannot care for children. Generally, there is no right to be paid for dependants leave but this will depend on the employment contract. It will also be very important for an employer to take care not to discriminate against particular employees in relation to these requests.

Do I need to pay an employee who is self-isolating?

An employee who meets the relevant earnings requirements will qualify for SSP if they are absent from work due to incapacity. New rules on SSP have already been implemented so that from 13th March 2020, an employee who is self-isolating pursuant to Government guidance will be deemed to be ‘incapable’ and so will qualify for SSP (providing that they meet the earnings requirements) from day 1 of their absence.

These regulations have initially been introduced for eight months, at which point they will be reviewed.

The employee may or may not be entitled to sick pay under their contract of employment.

If an employee is off sick then they should not be encouraged to take other forms of leave.

Can an employer reclaim SSP?

The Government has announced plans to help employers with fewer than 250 employees (calculated as at 28th February 2020.

An employer will be able to reclaim expenditure in relation to any employee who has claimed SSP (according to the new eligibility criteria) for up to two weeks per eligible employee who has been off work due to COVID-19.

Records should be kept of staff absences and payments and employees should not be obliged to produce a GP fit note (and can self-certify for 7 days). Employees will shortly be able to obtain an alternative fit note through NHS 111.

The eligible period for the scheme commenced on 13th March 2020. The remaining changes are expected to come into force within a matter of days and although the existing SSP systems are not designed for refunds, the Government has stated that it will work with affected employers.

When should an employee work from home?

If an employee is exhibiting symptoms and/or unable to work then they will be sick and should not be working.

If the employee is self-isolating in line with the latest official guidance then for the purposes of SSP, the employee is deemed to be sick.

If the employee is engaging in social distancing, caring for a family member or where an employer wishes for employees to work from home in line with current guidance of working from home when possible, then it may be possible to require the employee to work from home if they are able to (contractually and practically). If an employee’s contract does not specifically provide for working from home then it is possible to agree this directly between employer and employee.

How do I deal with employees working from home?

All employers are required to protect the health, safety and welfare of employees working from home. If an employer employs people who work from home then they should carry out a risk assessment of the work activities and take appropriate measures to reduce any associated risks. The Health and Safety Executive publishes useful guidance on this.

If employees work from home at short notice then it is likely that an employer should simply take a common sense, practical approach. Most employees working from home will not be undertaking risky activities. However, if the work activities are risky or the employee is being provided with equipment then care should be taken in assessing the risk levels.

It is useful to have a Homeworking Policy in order to ensure that the employer and employee’s rights and obligations are set out clearly. Neves’ employment team can help you with this.

Do I need to close down the workplace?

Not at the moment. This could change daily, however and measures should be put in place to consider how to operate if workplaces are ordered to close.

What do I tell my staff if someone has COVID-19?

COVID-19 is an infectious disease and an employer may have reporting requirements. However, internally, it will sufficient to inform the workforce that someone has been infected together with advice on the precautions and measures being implemented. In some workforces, it may be obvious who the affected person is but it will not be appropriate to disclose the person’s name as this is likely to be a breach of the Data Protection Act 1998.

Although the Information Commissioner's Office (ICO) has said that it will take a pragmatic approach to enforcement in relation to minor breaches, an employer should take care only to disclose such information as is necessary. This is unlikely to extent to identifying the person’s name.

Can I ‘lay off’ employees or ask them to work shorter hours?

The media has reported several businesses (mainly airlines) ‘laying off’ their staff. This usually means sending employees home without normal pay. However, without an employee’s express permission, lay off is only permitted where there is an express clause in the employee’s contract of employment.

Laying off employees in the absence of a specific clause would amount to a breach of contract. This could entitle an employee to resign and claim constructive unfair dismissal and/or make a claim for unauthorised deductions or non-payment of wages.

Laying off can sometimes be agreed to as an alternative to redundancy but generally laying off is a complex area and specific advice should be sought.

Do I have to pay commissions and bonuses?

This will depend on the employee’s contract of employment and entitlements.

Careful records should be kept in relation to figures and eligibility. A failure to pay commission or bonus or a change to a commission of bonus scheme without the employee’s consent or without a specific contractual clause is likely to be a breach of contract. This could entitle an employee to resign and claim constructive unfair dismissal and/or make a claim for unauthorised deductions or non-payment of wages.

Changes in payment structures can sometimes be agreed to as an alternative to redundancy but specific advice should be sought.

How we can help

Neves’ employment specialists can help you with questions which you may have about your employees. Call us on 0330 0945 500, email info@nevesllp.co.uk or complete our Online Contact Form and we'll get back to you.