Legal implications of Coronavirus for employers and HR
Please note this guidance on Coronavirus for HR and employers was updated on 18 March 2020 before the Prime Minister’s daily press conference. The situation is changing regularly so please do get in touch with our expert employment lawyers for tailored legal advice on Coronavirus and further questions on this issue.
The press has reported about little else than Coronavirus (COVID-19) for the past few weeks, and whilst some employers will already have issued guidance to staff, others may not have, and may not have decided how to handle issues such as pay and employees who are returning from abroad or still choose to travel abroad to the limited areas not yet closed off.
On 28th February, the World Health Organisation raised its global risk assessment of COVID-19 from high to very high. In February, the UK, Chief Medical Officers initially raised the risk from low to moderate. On 12 March 2020 the UK risk was raised from moderate to high and the WHO classed COVID-19 as a pandemic. On 10 February the Government made the Health Protection (Coronavirus) Regulations 2020 (which apply only in England) and declared that the incidence or transmission of novel Coronavirus constitutes an imminent threat to public health. Following this on 13 March the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 came into force for England, Scotland and Wales.
So what is the guidance for HR and employers on Coronavirus, and what are the practical and legal implications for employers faced with staff who may be affected in a number of different ways?
Who is in charge?
If not already set up, establish who will be in charge of the employer’s response and involved in contingency planning. Make sure action is taken quickly to proceed with the steps below – if senior organisational staff are not available then ensure the right people have delegated authority to prevent unnecessary delay or red tape. HR and health and safety teams will have a key role to play, but managers need to be involved too as they are the ones with close contact to staff, potential symptoms and understanding of holiday plans etc.
Communicating to staff about Coronavirus
On 25 February, the Government provided advice to employers and businesses to help them do this. Information to staff should include:
- Making staff aware of Government guidance which is currently being updated daily. On 13 March the Category 1 and Category 2 affected area guidance was withdrawn and replaced with the “Stay at Home” guidance which applies regardless of whether individuals have visited affected areas or not. Further guidance can be found here. Therefore it appears that Government guidance no longer applies to “categories” and in England also no longer makes a distinction between self-isolation for 7 days or 14 days except in relation to those who live alone and where self-isolation for symptoms is 7 days (subject to the guidance on ending isolation). Scotland takes a slightly different approach as does Wales (although much updating has yet to be done on the various related websites)
- Making staff aware of the requirements following the major announcement by the Prime Minister on 16 March, as a result of which asymptomic self-isolation for 14 days is now a requirement where anyone in the same household has symptoms of coronavirus, however mild. This is where an individual has a new, persistent cough or a fever (37.8 degrees or more). A household member who develops symptoms within the 14 day period will need to stay in isolation a further 7 days regardless of when the 14 day period started.
- Current Government/NHS advice about symptoms and how to distinguish it from regular flu, including instructions on exactly what procedure to follow if they start feeling unwell whilst in the office.
- Current Government advice to avoid unnecessary social contact or travel; work from home wherever possible; and for the over 70s, those with underlying health conditions or those who are pregnant essentially to go into self-isolation, see more here.
- Current Government/NHS advice hygiene advice about how to stop the spread of infection for all staff, especially where the workplace is able to remain open and staff are unable to work from home. Public Health England has produced lots of information about this and posters to use.
- Ensuring that staff understand when to self-isolate and the implications on their pay if required to do so.
- Reminding staff that discrimination of others on the grounds of race or ethnic origin in particular will not be tolerated.
- Instructing staff to follow up to date Foreign and Commonwealth Office guidance about any travel plans abroad for forthcoming holidays.
- Encouraging those members of staff who are taking Government advice to self-isolate because they are more vulnerable to contact HR to discuss their position, especially if they are unable to work from home. Ensure, however that no-one is unfavourably singled out on grounds of age or disability.
- Communicating any special measures or considerations which staff should take into account with customers, suppliers, volunteers or other people connected to the organisation.
The Government’s action plan was published on 3 March 2020.
Preventing contamination and spread of Coronavirus
Employers with staff still in the workplace should implement additional hygiene measures and facilities. Non-compliance with notified procedures could be considered a disciplinary offence but account will need to be taken of any measures/facilities/procedures which could potentially be discriminatory on grounds of one of the protected characteristics under the Equality Act 2010 (e.g. religion or disability).
For business travel outside the UK, risk assessments should be undertaken taking into account the essential nature of the travel and geographical areas involved. The UK has now advised against all non-essential travel anywhere in the world so most business travel outside the UK is unlikely to be justifiable.
Employers will need to consider their response to:
- Staff who do not self-isolate in accordance with the Government guidance mentioned above.
- Staff who have already made plans to travel abroad (if the area is not yet closed off) or are planning to travel, but who have not yet travelled and/or made arrangements to travel.
- Staff who ask or decide to self-isolate purely out of concern and not because of Government self-isolation guidance or actual symptoms.
Depending on the circumstances, employers could consider requiring staff in the first group not to attend work, and requiring staff in the second group to notify HR and implement processes to reduce risks, whilst recognising that staff cannot be told where to go on holiday especially if plans are a few months away. The third group is more complex and employers should be careful not to dismiss such requests out of hand. Employers will need to be clear about their approach to staff pay for all these groups, particularly if they do not follow employer instructions, and legal advice should be sought on the implications before implementing any particular pay policies.
What happens about pay for self-isolation?
Self-isolation where the employee is suffering from symptoms would clearly count as being incapacitated for work with entitlement both to SSP and any contractual sick pay offered by the employer (subject to eligibility in both cases). Discretionary sick pay will be down to the employer but could help prevent employees returning too early (although any such employees should be instructed not to return to work until they are medically advised it is safe to do so).
Previously there was debate about the right to SSP where employees have no symptoms, but are following Government guidance to self-isolate. The Government had stated that such employees would be eligible for SSP. In England and Scotland, public health legislation and regulations appeared to support this. It was put beyond doubt by the introduction of the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 which came into force on 13 March for England, Scotland and Wales.
Whilst this clarifies SSP, it does not necessarily clarify the position where there is no Government guidance and, for example, no ability to work from home. Such businesses, particularly in the hospitality industry with advice against going to pubs, clubs, theatres and restaurants, are likely to be particularly badly affected. The Government published its Coronavirus Bill on 17 March. It includes implementation of the Prime Minister’s announcement that employees would get SSP from the first day off work and the SSP requirement of 3 “waiting days” would be adjusted to limit the spread of COVID-19, including where the individual has no symptoms. It also includes measures for small businesses to reclaim SSP from the Government.
Some employers’ enhanced sick pay entitlements may be triggered if there is an entitlement to SSP. If not, employers may still wish to consider whether to pay contractual sick pay or normal pay in such circumstances, especially if the employer instructs the employee not to attend work. Conversely, some staff in household isolation may be willing and able to work from home for normal pay. In addition, consideration should be given to paying sick pay to casual or zero hours staff if they are unlikely to be entitled to SSP because they are low earners. The position of freelancers/independent contractors and volunteers will also need to be considered in order to protect the business from individuals attending the workplace when they should not be. According to reports, neither of these are addressed in the Coronavirus Bill.
With the situation now likely to continue for weeks if not months, not all employers can afford to pay more than SSP to those who are eligible, and many are already looking at alternative actions to prevent large scale redundancies or business failure. On 17 March the Government announced a number of measures to help businesses through the crisis where possible and on 18 March HMRC published a summary of those measures, including the high profile Coronavirus Business Interruption Loan Scheme, although many have called it a “first step”.
If not already in place, business contingency plans should include:
- telephone return to work interviews for those returning from travel abroad or who have self-isolated for whatever reason;
- home working and other alternatives where possible;
- having all employees’ personal contact details in the event of an emergency or decision to shut down the workplace (and, for those not already working from home, if possible requiring employees to take work or their laptops home every day in case they are required to remain at home, subject to data security measures);
- adhering to Government advice by reducing or postponing work-related gatherings;
- planning for the longer term to mitigate the effects of greater staff absences or an actual downturn in work due to COVID-19 which could lead to lay-off where contractually permitted, short-time working, and, like the last recession in 2008, asking staff in various ways to make sacrifices where possible to avoid, as a last resort, large numbers of redundancies. Please do not hesitate to seek our advice if any such options are being considered.
- planning for working parents’ absences following the announcement on 18 March that schools in Wales will close by 20 March at the latest and schools in Scotland by the end of this week.
At all times employers must remember their legal duty to ensure the health and safety at work of their workforce as well as others who may be affected and the implied duty of mutual trust and confidence.
Blake Morgan’s employment law experts and immigration law experts can give you further tailored advice in relation to any of the above topics above, including where there is an international workforce operating in different countries and details of the employer’s responsibilities for staff working abroad or staff working in the UK under immigration sponsorship arrangements.
This article was first published on 6 March and updated on 18 March.
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