Coronavirus: FAQs for employers

The prime minister, Boris Johnson, in a public address to the nation on 23 September 2020, imposed tighter restrictions in England aimed at controlling the spread of COVID-19 (coronavirus). The new restrictions include a return to the ‘work from home if you can’ guidance.

In this article, we consider some of the questions our employment team has been most frequently asked in connection with the coronavirus pandemic in recent weeks. 

Please note: The article is based on the national restrictions applicable to England. Employers in Scotland, Wales or Northern Ireland should check their local restrictions, which differ in some respects. Some areas of the UK are also subject to additional localised measures.

Which employees should work from home?

The current guidance is that the following individuals should work from home over the winter:

• Office workers who can work effectively from home
• Any worker who can carry out their normal duties from home (as judged by agreement between the employer and the worker)

Provided the workplace has taken measures to make it COVID-19 secure, the following individuals should carry on attending their workplace as usual:

• Public sector employees working in essential services, including education settings
• Anyone else who cannot work from home (e.g. those whose work requires them to be physically present in the workplace)

Should workers who are more vulnerable to coronavirus work from home, or shield?

The Public Health England report Disparities in the risk and outcomes of COVID-19 shows that some groups of people may be at more risk of being infected and/or an adverse outcome if infected. The higher-risk groups include those who:

• Are older males
• Have a high body mass index (BMI)
• Have health conditions which makes them vulnerable to coronavirus (e.g. diabetes, heart disease)
• Are from some black, Asian or minority ethnicity (BAME) backgrounds

There is a growing body of evidence confirming that ethnicity can be a major risk factor for coronavirus, with BAME individuals facing a statistically significant increased risk of death from coronavirus.

Despite those risks, there is currently no need to shield, as the requirement to do so was withdrawn in the summer. We may yet see a return to shielding later in the year if the spread of coronavirus is not kept under control.

The current guidance on social distancing confirms that in deciding whether vulnerable individuals should attend work:

• Extra consideration should be given to those people at a higher risk from coronavirus
• Those classed as clinically extremely vulnerable should carry on working from home wherever possible, but can go to work as long as the workplace is COVID-19 secure

In many cases, staff who are extremely vulnerable to coronavirus will also be considered disabled for the purposes of equality law. If they are disabled, then the employer has a legal duty to make reasonable adjustments. This may involve changing the way things are done (such as policies/procedures), changes to overcome barriers to physical features of the workplace, and/or providing extra equipment to help the disabled employee do their job.

Employers may therefore want to consider:

• Asking workers to self-identify as having higher-risk health conditions, disabilities or other risk factors
• Performing up-to-date risk assessments for vulnerable staff
• Whether the worker needs reasonable adjustments (e.g. varied working hours so as to avoid travelling on public transport at peak times)
• If the vulnerable staff can perform their duties from home (perhaps with some reasonable adjustments to facilitate this)
• If the work cannot be done from home, is there anything else that can be done to reduce their risk (e.g. can they be removed from higher-risk frontline customer facing duties?)

Employers should also ensure that any pregnant worker has an up-to-date risk assessment. In some circumstances, there may be a duty to suspend a pregnant worker on full pay if the risks she faces cannot be controlled, and she cannot be offered alternative duties.

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

This is likely to depend on whether the dependant lives in the same household as the worker, or has been in close personal contact with them.

Statutory sick pay (SSP) rules have been amended to cover people who are self-isolating because someone who lives in the same household has coronavirus symptoms. The current guidance on household self-isolation requires household members to self-isolate for 14 days from the day when the first person in the household became ill. Any member of the household who goes on to display symptoms must go on to self-isolate for a further ten days from when their symptoms appeared (the 14-day household isolation is disregarded for these purposes). 

If the dependant does not live in the same household, but the employee has had close personal contact with the dependant, they may also be asked to self-isolate for 14 days by the track and trace system. In that scenario, they are entitled to statutory sick pay during that period of self-isolation.

Employers who pay SSP for coronavirus-related reasons can reclaim this from the government.

If the dependant does not live in the same household, and the employee has not had close personal contact with the dependant, there is no entitlement to SSP. However, it is likely the employee will be eligible to take unpaid 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 dependent care leave; or (b) to take their own contractual sick pay when a dependant falls ill. 

Unpaid dependant care leave will usually only allow an employee to take a few days off to arrange alternative care for their dependant, but the amount of time off which may be considered ‘reasonable’ will depend on the facts specific to the individual (e.g. the lack of alternative care provision) and we anticipate employment tribunals being sympathetic in these circumstances. Employees who take emergency time off to care for their dependants are granted additional protection from being subjected to a detriment, and any dismissal motivated by their need to take dependant care leave would be automatically unfair.

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. Strictly speaking, the employee must give 21 days’ notice to take a period of unpaid parental leave, but this can be waived by the employer at its discretion.

The employer may also consider, allowing the employee to:

• Agree for the time to be taken as holiday
• Work from home if this is viable/practical
• By agreement, make the time up at a later date

Do we need to pay sick pay to a worker who has had to stay at home because their child’s school asks them to self-isolate because of a positive coronavirus test in their ‘school bubble’?

There is no entitlement to statutory sick pay (SSP) if an employee is unable to work because their child has been asked by the school to self-isolate as a precautionary measure because of a positive coronavirus test in their ‘school bubble’. The employee will only become entitled to SSP if they themselves, or someone in their household, begins to display symptoms and they need to self-isolate under the current guidance on household self-isolation.

However, 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. However, some contracts allow the employee: (a) paid dependant care leave; or (b) to take emergency annual leave in such circumstances.

Unpaid dependant care leave will usually only allow an employee to take a few days off to arrange alternative care for their dependant, but the amount of time off which may be considered ‘reasonable’ will depend on the facts specific to the individual (e.g. the lack of alternative care provision) and we anticipate employment tribunals being sympathetic in these circumstances. Employees who take emergency time off to care for their dependants are granted additional protection from being subjected to a detriment, and any dismissal motivated by their need to take dependant care leave would be automatically unfair.

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. Strictly speaking, the employee must give 21 days’ notice to take a period of unpaid parental leave, but this can be waived by the employer at its discretion.

The employer may also consider, allowing the employee to:

• Agree for the time to be taken as holiday
• Work from home if this is viable/practical
• By agreement, make the time up at a later date

Is an employee who has to self-isolate after travel entitled to sick pay?

There is no entitlement to statutory sick pay (SSP) if an employee needs to self-isolate for 14 days post-travel to a non-exempt destination. For further details on this requirement, please see our article.

The employee will only become entitled to SSP if they themselves, or someone in their household, begins to display symptoms and they need to self-isolate under the current guidance on household self-isolation.

If you have any further questions about the above, please contact your usual Hill Dickinson contact.