Coronavirus: FAQs for employers

Read the updated version of this article.

The WHO (World Health Organization) has declared COVID-19 (coronavirus) a pandemic. A realistic worst-case scenario involves up to 80% of the population catching the virus, with the bulk of these cases falling within a window running from mid-April to mid-June 2020. The CMO estimates the mortality rate to be ‘less than 1%’, with many people experiencing only mild to moderate symptoms. However, in the elderly and certain higher risk groups, mortality rates are far higher.

The country has switched its approach to attempting to suppress the peak of the virus to allow the NHS more time to prepare and cope during the peak of infections. New guidance requires anyone with a persistent cough and/or fever to self-isolate for seven days if they live alone (or for the whole household to self-isolate for 14 days if anyone in the family displays those symptoms). Social distancing guidance suggests homeworking is advised wherever practical and this is ‘strongly advised’ for those who are pregnant, over 70, or under 70 with high-risk health conditions.

Schools, nurseries and colleges closed on Friday 20 March 2020, to all but the children of key workers and those deemed vulnerable. This has left millions of workers with childcare issues, rendered more acute in many cases by their inability to rely on vulnerable grandparents to assist.

On Friday 20 March 2020, the chancellor announced a bigger package of business support measures, including an entirely new concept of ‘furlough leave’, which means the government will pay up to 80% (capped at £2500 pcm) of an employee’s salary until 31 May 2020 if they are not given any work due to coronavirus.

Our employment team, which includes a specialist team of health employment lawyers, has put together an updated list of frequently asked questions on coronavirus for employers.

What measures can I take to protect the health and safety of workers?

The starting point for any employer should be to minimise, so far as possible, the risk of workers bringing coronavirus infection with them to work. If workers attend work while symptomatic, or when they ought to be self-isolating, then the chances of them infecting colleagues (and depending on the nature of the business customers/service users) is significant. The very last thing an employer needs right now is coronavirus spreading uncontrolled among its workforce. Strong leadership from the top is required – workers should be instructed to follow the government’s current self-isolation guidance, which is to self-isolate for seven days for those with a persistent cough or fever (or for the whole household to self-isolate for 14 days if any member has these symptoms). If a worker meeting this criteria attends work, they should be immediately sent home to self-isolate (see later regarding their sick pay entitlement). Employers should consider removing barriers to people self-isolating, for example:

• Can company sick pay be offered to encourage people to claim sick pay instead of trying to work?
• Can workers be allowed to use their accrued holiday instead of claiming statutory sick pay?
• Should coronavirus-related absences be excluded when granting attendance incentive awards (because otherwise the employee might be financially ‘motivated’ to attend work ill)?
• Sending workers home from work if they present at work with symptoms

What measures can be taken to protect the most vulnerable workers (or those with a vulnerable dependant)?

Some people are more vulnerable to coronavirus and are statistically at a higher risk of suffering severe symptoms or fatality, for example, the elderly, pregnant women and those with underlying health conditions (such as diabetes, cancer, asthma, COPD, or heart disease), and those who are otherwise immunosuppressed. Social-distancing guidance strongly advises that such workers should work from home if practical, and if not, vary their working hours to minimise rush-hour commuting. Such workers, or those with close dependants who are vulnerable, may be understandably fearful of contracting coronavirus and keen to minimise the risk of doing so.

For disabled workers, the employer has a positive legal duty to make reasonable adjustments to remove any substantial disadvantage they face accessing work due to their disability.

For pregnant workers, the employer should update their risk assessment and consider how the risks can be mitigated. However, outside of those duties, employers should consider whether it is practical to agree temporary variations to the working conditions of vulnerable workers (irrespective of disability), for example:

• Can working hours be varied, to allow the worker to avoid rush-hour commuting on public transport?
• Can the worker be allowed to work from home as much as possible?
• Can they be removed from higher risk front-line customer facing duties?
• Can they be allowed to take some of their accrued annual leave during the peak of the pandemic?
• Can they be placed on furlough leave?

A worker who should be in self-isolation wants to return to work before the isolation period is over – can we stop them doing so?

This is a dilemma, because in many cases the period of self-isolation is merely ‘recommended’ by current government advice (e.g. guidance on the NHS 111 website), it is not ‘compulsory’ or a ‘legal obligation’ placed upon the worker. Firstly, consider whether you have an express right to require the employee to stay at home (e.g. some workplaces have infectious diseases policies, which may deal with this point). If not, it may be 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 of infection for other staff. There is no general implied term requiring an employer to provide work provided it continues to pay the employee’s wages. Therefore, it is 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. However, some employers are taking a robust approach and only paying sick pay in accordance with the contract for any time spent self-isolating. Alternatively, consider whether agreement can be reached to permit the worker to work from home (and therefore continue to be paid as usual).

When do we have to pay statutory sick pay for those with symptoms or self-isolating?

Currently, if an English worker is ordinarily eligible for statutory sick pay (SSP), it will be payable if they are:

• Incapacitated due to injury or illness (i.e. symptomatic)
• Deemed to be incapacitated despite being ‘capable’ of work because one of the following applies:
  • they are self-isolating for 7 or 14 days in accordance with the online self-isolation guidance.
  • NHS 111 or a doctor advises an employee to self-isolate due to coronavirus (this can be orally or in writing, but should be followed up with a self-isolation notice if oral)
  • a doctor states that the employee should not work for precautionary or convalescent reasons; or
  • they are excluded from work on a certificate from a medical officer for environmental health and are under medical observation because they are a carrier of, or have been in contact with, an infectious disease.

Traditionally, an employee is not eligible for SSP for the first three days (known as ‘waiting days’). New regulations came into force on 28th March 2020, but which apply retrospectively from 13 march 2020, disapplies the waiting days, where the employee is actually or deemed incapacitated (see above), because of coronavirus.

Do we need to pay statutory risk pay if a worker chooses to self-isolate (when the official guidance does not require it)?

A worker who merely chooses to self-isolate in circumstances where none of the above requirements are met (e.g. because they are afraid) is not entitled to statutory or contractual sick pay. However, an employer should exercise a degree of discretion when dealing with such a worker (e.g. they might have genuinely misinterpreted the government guidance) and should check that they are not seeking to take a different kind of leave e.g. dependant care leave (see later).

Do we have to pay contractual sick pay?

This depends on the precise wording of any contractual sick pay provisions in the contract. Many employers appear to take the view that a non-symptomatic worker in self-isolation should not receive full company sick pay. However, it is very difficult to argue that a worker is not entitled because they are not symptomatic, in circumstances were SSP regulations ‘deem’ them to be ‘incapacitated’ in the circumstances outlined above. 

Do we need to pay a worker who has had to stay at home because a dependant has coronavirus?

Statutory sick pay (SSP) rules have been amended to cover people who are self-isolating for 14 days if they live in the same household as someone who displays coronavirus symptoms.

If the dependant does not live in the same household, it is likely they will be eligible to take dependant care leave. This allows an employee to take a reasonable amount of unpaid leave to take necessary action when a dependant falls ill or dies. However, some contracts allow the employee: (a) paid dependant care leave; or (b) to take their own contractual sick pay when a dependant falls ill.  

Do we need to pay a worker who has had to stay at home because a school is closed, or because their child’s carer/childminder has coronavirus?

It is likely that this would fall within an employee’s right to take unpaid dependant care leave. This allows an employee to take unpaid leave to take necessary action because of the unexpected disruption or termination of arrangements for the care of a dependant. Some contracts allow the employee paid dependant care leave.

Employees with one year’s continuous service may also apply for a period of unpaid parental leave. This is available for the purpose of caring for a child under 18, and parents can apply to take a maximum of four weeks’ parental leave per child per year. The employer may also consider, agreeing with the employee:

• For the time to be taken as holiday
• For the employee to work from home if this is viable/practical
• That the employee will be placed on furlough leave

Can we place restrictions on taking annual leave to help meet staffing shortages and/or to prevent workers from using their holidays to travel to high-risk areas?

Possibly, but there are some risk factors to consider. The starting point is to check the employment contract to make sure there are no contractual provisions, which will restrict the employer’s ability to prevent the employee from taking leave. Secondly, check if there is any ‘relevant agreement’ under the Working Time Regulations, which restricts the employer’s flexibility to prevent the employee from taking leave. Assuming both of these enquires produce a negative result, then the employer has a few options:

• If the worker’s holiday request has not already been granted, consider whether the relevant rules (which may be contained in the contract, relevant agreement or policy) allow the employer to reject the request. Most contracts will expressly state that all leave is ‘subject to approval’ by a line manager and no holidays should be booked before approval has been given. Provided the employer gives as much notice of the rejection as the amount of leave requested e.g. two weeks’ notice to reject a request for two weeks’ leave, then this complies with the statutory requirements.
• If the holiday has already been approved/booked, the employer can give counter notice to prevent employee from taking leave. The employer must give at least as much notice as the amount of leave being rejected e.g. if the worker requests one week’s leave, the employer must give one weeks’ notice. It is generally accepted that the employer should bear the cost of any cancelation (assuming this is not recoverable via travel insurance).

It is best practice for employers to use these tactics sparingly, yet fairly and consistently. Care must also be taken to make sure they are not applied in a discriminatory way.

Should we cancel international business travel?

Many of the most affected areas are in total lockdown and subject to severe travel restrictions. However, to the extent that international travel is possible, employers may want to:

• Consider current Foreign and Commonwealth Office (FCO) guidance on travel restrictions
• Consider the heightened risk of personal injury claims should a worker fall ill while abroad on company business (based on the employer’s failure to take reasonable steps to protect their health and safety when there is a foreseeable risk of harm)
• Consider the very real risk that the worker will become ‘trapped’ in the country due to travel bans/restrictions
• Keep the situation under review - the picture is changing on a daily basis

What is emergency volunteering leave?

This is a new concept found in the Coronavirus Act 2020, which is expected to be introduced shortly by regulations.  Employees, workers and agency staff, employed by an employer with 10+ staff, will be able to take two, three or four consecutive weeks’ emergency volunteering leave in each 16-week window known as a volunteering period.  An employer does not need to pay any wages or remuneration during periods of emergency volunteering leave, but the worker will otherwise be entitled to the benefit of all of the terms and conditions of employment, which would have applied if the employee had not been absent. The worker is also given special protection from detrimental treatment and any dismissal on the grounds of emergency volunteering leave will be automatically unfair (and require no minimum service).

Can we lay staff off due to coronavirus?

First, check if the contract contains a contractual provision, which allows the employer to temporarily lay people off work (or reduce working hours). If there is a contractual right to lay off, then the employer should comply with the requirements of the provision (e.g. give the required notice of lay-off to staff and/or consult with any recognised trade unions if required).

Employees with one month’s service, who are laid off, may be entitled to claim a statutory guarantee payment (SGP) on up to five workless days in a three-month period. To calculate SGP, the company must multiply the regular hours that the employee would have worked on the ‘workless day’ by the ‘guaranteed hourly rate’. The current maximum daily limit of SGP is £29 (subject to the maximum of five days or £145 in any three months). 

Employees can claim a redundancy payment from the company if they are laid off for:

• Four or more weeks in a row
• Six or more weeks in a 13-week period, where no more than three weeks are in a row

If there is no contractual right to lay staff off, the employer faces two main choices:

• Seek the agreement of the staff to a temporary lay-off or reduced hours. This will require consultation and is usually based on the rationale of saving jobs/reducing the need to make redundancies.
• Seek the consent of the employees to change the contract to include a lay-off provision. This negotiation must be handled fairly and will require a consultation process and reasonable notice. Specific advice should be sought.

If there is no lay-off provision in the contract, any lay-off without agreement, would be a fundamental breach of contract, an unlawful deduction of wages and could lead to various employment claims.

Can you recommend any business continuity measures we can take?

These will differ from business to business, but many employers are considering issues such as:

• Working remotely

You will need technology that allows your employees to work from home, which is robust enough to cope with an increased volume of home working. This should allow meetings to take place (over Skype or similar) for business to continue as normal.

Employees also need to be prepared to take measures that allow them to work from home, e.g. taking their laptop home every day.

If working from home is not an option, consider advising, or instructing, affected staff to use their annual leave during the period of emergency measures (which will also make them available to work later in the holiday year) or asking them to take an agreed period of unpaid leave

• Replacing affected employees

If working remotely is not possible for some members of staff, unaffected workers should be given their duties, with alternative duties given to those affected.

Consider which of your staff are essential and if your business can continue to operate with a skeleton workforce. Consider if the number of agency, temporary and casual staff can be reduced to cut costs during this time.

• Employment contracts/annual leave

Placing restrictions on annual leave for unaffected workers (within those permitted by the contract and Working Time Regulations 1988) will help to make staff available during the peak of coronavirus disturbances.

If your contracts allow for temporary lay-offs of employees that would help to remove affected workers from your business, make sure they understand their rights and entitlements.

• Communication is key

Make sure you have a communications plan in place to provide your workforce with regular situation updates. As well as any actions taken by the business during the emergency measures period.

Our team of specialist employment lawyers, which includes a number of health employment lawyers, can provide you with specific 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.