Employment Law – COVID-19 Update
COVID-19 has been declared a public health and economic emergency. The pandemic has upended life as we know it. Businesses are evaluating every area of operation in order to respond to the developing crisis. What are the implications for employers? We answer your questions below.
In addition to the common law duty of care, employers are required under the Health and Safety at Work Act 1974 (“HSAWA”) to ensure, “so far as is reasonably practicable”, the health, safety and welfare of employees at work. In addition to the company itself, individual directors, company secretaries and managers can incur criminal liability under section 37 of the HSAWA in some circumstances for failure to satisfy this duty.
All employers should urgently review internal health and safety protocols by consulting the official government guidance for employers frequently and on an ongoing basis, as the situation continues to develop. It may also be useful to periodically review updates issued by the Department of Health and Public Health England.
Although COVID-19 is a physical illness, bear in mind that it may have knock-on effects on the mental health of employees. There is an established body of case law requiring employers to take reasonable steps to guard against reasonably foreseeable risks to mental health (see for example Walker v Northumberland CC  1 All E.R. 737). Keep in mind therefore that some employees may experience anxiety or elevated symptoms of pre-existing conditions as the pandemic continues to evolve. Your existing policies with regards to handling mental health illness will continue to apply.
We address some frequently asked questions below.
What is the official guidance for employers?
HM Government has issued official guidance for employers. Due to the frequency of announcements, this is being updated, almost daily.
The document contains practical advice/information on:
- what to do if an employee becomes sick;
- how to proceed if an employee who is COVID-19 positive (or suspected to be so) has recently been in the workplace, or if an employee has been in contact with an affected individual;
- certification for sick leave, including after the statutory 7-day period has expired;
- what to do if employees have returned from travel overseas; and
- cleaning, disinfection and waste disposal protocols.
Guidance can be found here on measures that the Government is introducing, to support employers.
What employment measures could be taken by businesses with revenues impacted by the Covid-19 outbreak?
Until 20th March, many employers were seriously considering implementing immediate and radical cost-cutting measures, including redundancies/restructuring programmes, to reduce payroll costs and protect their businesses. For some employers, that may still be necessary, particularly for those who were considering restructure/cost-cutting measures before the onset of the Covid-19 crisis.
However, on 20th March, the Government announced ground-breaking measures that are intended to reduce the payroll burden on employers impacted by the crisis. Specifically:
- For all employees who remain on the payroll with no work to do, the Government will pay 80% of their basic salary up to £2,500 per month. They will also give employers the ability to top-up the salary to 100%. All businesses are eligible for this scheme.
In order to access this scheme, businesses will need to:
- Designate affected employees as ‘furloughed workers,’ and notify your employees of this change. Changing the status of employees remains subject to existing employment law and, depending on the employment contract, may be subject to negotiation.
- Submit information to HMRC about the employees that have been furloughed and their earnings through a new online portal (HMRC will set out further details on the information required).
The Government has pledged these measures will be in place for three-months and available by the end of April but will take affect from 1 March 2020. These arrangements will be reviewed every month so that if further extensions are required, this is possible.
For many employers, the above measure may have been a game-changer, allowing continued employment of employees (at least in the short term), whose roles may otherwise have been made redundant. As is typical of Government ‘announcements’, the detail of how the scheme will work in practice, remains to be seen. We understand that the HMRC are now working to set up a system for reimbursement as existing systems are not set up to facilitate payments to employers and will publish further guidance here as soon as it’s available. We would strongly recommend that employers frequently check here for guidance/updates.
Whilst the above measure applies to ‘furloughed workers’, many employees will continue to work as normal (whether at home or otherwise) and therefore not fall into that category. We have addressed frequently asked questions below, relating to those employees.
What is self-isolation and under what conditions should employees be required to self-isolate?
‘Self-isolation’ refers to the imposition of a full quarantine. As of current guidelines, it applies to individuals who are showing symptoms; whose family members are showing symptoms or who are in close contact with an individual showing symptoms; awaiting COVID-19 test results; or who have returned from travel to a number of countries and/or territories. An individual who is self-isolating is required to remain indoors with no external contact for a minimum of 14 days.
‘Social distancing’ means reducing contact with the external world as much as possible. It means avoiding public spaces and activities except as required for essential shopping (food and medicine) and travel. This policy initially applied only to individuals above the age of 70, those who were immunocompromised, those with an underlying health condition, or those who were pregnant. However, it has now been expanded to include all members of the general public.
Social distancing includes working from home where an employee is able to do so. Although this was initially phrased as a suggestion, pursuant to Prime Minister’s statement to the public on 17 March 2020 it appears this is now to be interpreted rigidly. In other words, all employees who can work from home should do so, and employers must enable and support this. Face-to-face meetings and conferences should be replaced with video or teleconferencing. There is at present no indication on when this policy will be relaxed, although it has been widely interpreted as applying for at least several weeks from the date of the announcement.
Where it is not possible for employees to work from home, employers are advised to consider flexible working hours, such as changing start and finish times to allow workers to avoid rush hour commuting.
Employers should be aware that as of 17 March 2020, the Foreign and Commonwealth Office has advised that all non-essential overseas travel is to be suspended for a period of 30 days.
Are employers required to provide access to COVID-19 testing if there are suspected cases in the workplace?
There is currently no indication that employers are required to provide testing. The official policy remains that individuals who suspect they are infected consult the NHS 111 website as the first port of call and complete the self-assessment, which will direct whether a test is required.
Do employers have a right to exclude employees from the workplace, e.g. as a precautionary measure?
As explained above, employers are under a duty to protect the health and safety of its employees and provide a safe place of work. As such, employers may find that have no choice but to exclude some employees from the workplace, in order to comply with its health and safety obligations towards the rest of the workforce, even if that means potentially breaching an employee’s employment rights.
If an employee is showing symptoms of Covid-19, then it is likely that employers can ask those employees not to attend the workplace, on health and safety grounds. As such, those employees should be instructed to self-isolate in accordance with government guidance. Employees who are self-isolating may qualify for SSP or contractual sick pay (see below).
If an employee is being excluded from work purely as a precautionary measure (and not because they are showing signs of infection) then, before excluding them from the workplace, employers should consider the following:
- Is remote working a possibility? If so, employees should be encouraged to do so.
- Is there is an express contractual right to require the employee to stay at home?
- If there is not, does the employee have a right to attend work or to be provided with work (which could either be an express or an implied term)?
Generally speaking, it is unlikely that the employee will have an implied right to attend work or be provided with work, as long they continue to receive their usual salary and benefits (unless they qualify for sick pay). As such, provided the employer has reasonable (non-discriminatory) grounds for excluding the employee from the workplace, and it acts reasonably and sensitively in the circumstances, it may be able to exclude employees from the workplace, provided the employee continues to receive their usual salary and benefits.
Can employers restrict business and/or personal travel?
Employers must consider cancelling all non-essential overseas travel for a minimum of 30 days from 17 March 2020. At present, there is no clear guidance on the definition of ‘non-essential’ – the Foreign Office states that it is to be evaluated on a case-by-case basis. It would appear however that this advice should be interpreted strictly – in other words, employers must seriously consider in the first instance if overseas travel can be postponed, or overseas meetings conducted by alternative means, such as video or teleconferencing.
UK individuals who are currently in overseas have not been advised to return immediately, unless they are in a country or territory identified as high risk. The full list, and requirements for each country/territory, can be searched and viewed here.
Remote working – is there an obligation to implement and/or enforce remote working? If not, is there an obligation to consider requests for remote working?
As detailed above, the current policy on social distancing requires that employers enable and allow working from home wherever possible. Any request to work from home should therefore be considered carefully, with particular reference to the duties of the employee in question and whether those duties could be carried out remotely. If employer has not already implemented a home working policy for those employees who can work remotely, one should urgently be considered.
Where remote work is impossible, for instance for retail workers (particularly in key sectors such as supermarkets and pharmacies), delivery workers or counter staff, designating those employees as furloughed workers could be appropriate.
Are self-isolating employees entitled to pay, and if so what pay?
Generally speaking, subject to the terms of the employment contract, any self-isolating employees who are able to work remotely are entitled to their normal pay and benefits.
If self-isolating employees are not able to work from home, then regardless of whether they are themselves sick or displaying symptoms, they are at a minimum entitled to Statutory Sick Pay (“SSP”). For example, if you have an employee who is not currently sick, but has to self-isolate because a family member is sick, and that employee cannot work from home, they are entitled to SSP.
The entitlement to SSP begins on day one of the relevant period, as opposed to day four. The government intends to enact legislation such that this applies retrospectively, from 13 March 2020 onwards. Employers have been urged to “use their discretion” on what medical evidence, if any, is required for payment of SSP. There are plans to enable employees to obtain sick notes (‘fit notes’) through the NHS 111 service, rather than having to consult their GPs as would normally be required. However, this has not yet been confirmed.
The government has announced financial support for businesses to this end. Employers with fewer than 250 employees can claim a refund for SSP paid due to COVID-19 for up to a maximum of two weeks per employee.
Is there an obligation to consider extension of full sick pay if an employee has already hit or exceeded contractual limits?
There is no obligation to consider the payment of full sick pay for employees affected by COVID-19, and, it follows, no obligation as to the extension of contractual limits. However, we would advise considering payment of contractual sick pay in addition to SSP, where possible.
What should employers do if employees have to stay home because of carer obligations? Should this be paid, and if so, how?
Given the government’s recent decision to close schools across England, there may be a need (more than ever) for employees to stay at home to look after their children or care for their dependents. There is a limited right for time off to look after dependents where schools are closed. Subject to the terms of employment, this would ordinarily be a period of unpaid leave, unless the employer provides an enhanced scheme (or agrees to paid leave on an exceptional basis).
Depending on the circumstances, there may be other alternatives, such as:
- the employee taking some paid time as annual leave (though they may be reluctant to do so);
- the employee working from home; and/or
- the parties agreeing flexible hours.
Is there a legal obligation for employers to have internal policies/guidelines/risk assessment strategies?
The general duties set out in section 2 of the HSAWA include a provision requiring every employer to:
“Prepare, and as often as may be appropriate revise a written statement of [its] general policy with respect to the health and safety at work of [its] employees and the organisation and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision of it to the notice of all [its] employees.”
What does this mean for employers?
In practical terms:
- If you have not already done so, you should circulate an internal policy on measures being taken, including the availability of working from home, flexible work hours (if applicable), alternative arrangements for meetings and conferences, and sick pay.
- Ensure contact details for employees and their nominated next of kin are up to date and circulated to line managers and heads of department.
- If employees are still attending the office, devise and implement safety measures to limit the spread of infection, such as making hand sanitiser available and advising that employees maintain a minimum distance of 2 metres from others. Fuller guidance on preventing the spread of the virus is issued by Public Health England and should be consulted as the first port of call. It may be sensible to circulate the tips on personal hygiene to all staff.
Are employers required to train line managers/heads of department to spot symptoms and implement internal policies, e.g. contingency plans if the office has to be closed/disinfected?
Yes. The HSAWA requires:
“The provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of… employees.”
This is reiterated in the official guidance to employers. The government says managers must:
- Know how to spot the symptoms of COVID-19 – which are any or any combination of a new, continuous cough; fever; and shortness of breath; and
- Be clear on relevant processes such as sickness reporting, sick pay, and the procedures to be adopted if someone shows symptoms in the workplace, or has been in contact with someone showing symptoms or who has tested positive.
All this information can be found in the official guidance document, which is updated periodically and should therefore be reviewed periodically.
This article is provided for general informational purposes only. Although every effort has been made to ensure that information in this article is accurate, it does not constitute legal advice and should not be relied on as such. In case you require any legal advice, please do not hesitate to contact us.
For general information which may aid in the development of internal policies: