Coronavirus: advice for employers

Please note: we have a released an up-to-date FAQ article for employers

The number of confirmed cases of coronavirus (COVID-19) in the UK has today grown to 36, with cases spread over a wide geographical area. The WHO (World Health Organisation) has raised its global risk assessment of COVID-19 from high to very high. As public concern around coronavirus grows, we are also seeing an increase in queries from employers asking for our advice on how they should deal with the various employment issues that may arise. Our employment team, which includes a team of specialist health employment lawyers, has put together a list of frequently asked questions.

Dealing with coronavirus in your workplace

Employers will frequently encounter workers who become unwell with cod/flu like symptoms. Currently, official advice suggests that unless one of two main risk factors are present, it should be assumed that any such illness is a common cold/flu and employers should carry on as normal.  The main risk factors are:

• Recent travel to a high-risk area
• Recent close personal contact with a confirmed case of coronavirus

If someone with one of those risk factors becomes unwell in the workplace, they should be isolated and seek advice from NHS 111. You may want to deep clean the area and their workstation after they leave the premises. 

If the laboratory tests confirm COVID-19 infection was present, you will be contacted by your local health protection team who will conduct a risk assessment and provide further advice. Workers who have had close contact with the affected worker will be asked to self-isolate at home for 14 days.

Dealing with staff who need to self-isolate

Workers may be advised to self-isolate for 14 days if they have:

• Recently returned from a specified high-risk country
• Recently had close personal contact with a confirmed case of coronavirus

If a worker in self-isolation is symptomatic, then the employer should treat this as sick leave in the usual way.

There was initially some uncertainty around non-symptomatic workers in self-isolation – could they really be considered to be ‘incapable’ of work in order to claim sick pay? However, it now seems that, in England, due to a complex mix of rarely used legislation, assuming a worker self-isolates because they are given a written notice to so do, typically issued by a GP or by NHS 111, then they are deemed to be ‘incapable’ of work, and so are entitled to claim statutory sick pay (SSP). That certainly matches the publically expressed view of the Secretary of State for Health, Matt Hancock. If a worker has not received the written notice asking them to self-isolate, then there is no entitlement to SSP.  Although, if the self-isolation is because a worker’s dependant has become ill, the worker will almost certainly be able to take a period of unpaid dependant care leave. Further, if a worker, who has not been given written notice to self-isolate by their doctor of NHS 111, is asked by an employer not to attend work e.g. as a precaution, then this is akin to a suspension on health and safety grounds, for which they ought to receive their usual pay.

A worker who should be in self-isolation wants to return to work before the 14 days are up – can we stop them doing so?

The employer should firstly consider whether it has an express right to require the employee to stay at home. Some workplaces have infectious diseases policies, which may deal with this point. If not, it may be technically possible for the employer to suspend the employee on health and safety grounds (because their return to work during the self-isolation period may increase the risk that other staff may be infected if they are carrying COVID-19). There is no general implied term requiring an employer to provide work, provided it continues to pay the employee’s wages. It is therefore unlikely to be a breach of implied duties of the employment contract to suspend an employee on full pay, provided the matter is dealt with appropriately, proportionately and sensitively.

Our team of specialist employment lawyers, which includes a number of specialist health employment lawyers, can provide you with properly tailored advice on these issues and any others you may face. 

For further updates and other articles discussing the impact of the coronavirus please view our coronavirus hub.