The outbreak of Novel Coronavirus (COVID-19) is a worldwide pandemic and, understandably, this will be creating great concern and unrest for you and amongst your workforce. Below we answer some key questions to clarify employers' legal obligations and support you in protecting your business and people.
The date of last revision of this article can be found at the bottom of this webpage.
What are employers' obligations in respect of COVID-19?
Level of restrictions
The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 contain various measures, including the requirement for certain businesses to close, such as pubs, cinemas, shops selling non-essential goods and hotels (apart from to permanent residents or key workers).
On 10 May 2020, the Prime Minister outlined proposed phases for the lifting of social restrictions. The phases are broadly as follows:
- Step 1: Those who cannot work from home are actively encouraged to go to work. However, individuals should avoid public transport if possible, and maintain compliance with social distancing rules. Restrictions on outdoor exercise were lifted from Wednesday 13 May 2020, but should only be undertaken with members of your own household.
- Step 2: This phase is expected to come into force until at least 1 June 2020. The government has proposed a phased reopening of schools for certain age groups, e.g. children in reception, Year 1, and Year 6 (with some secondary education, e.g. Year 10 and 12, to resume from June 15 2020). On 25 May, the government also confirmed that outdoor markets and car showrooms will be able to reopen from 1 June, with non-essential retail to reopen from 15 June 2020 (providing that they can meet COVID-19 secure guidelines, as outlined in ‘Health and Safety’ below).
- Step 3: This phase is not expected to be in place until at least 1 July 2020. The government has proposed a reopening of at least some of the remaining businesses and premises that have required to close, including personal care (such as hairdressers and beauty salons), hospitality (such as food service providers, pubs and accommodation), public places (such as places of worship) and leisure facilities (including cinemas).
On 11 May 2020, the Government published details on the plans to lift measures imposed in response to Covid-19 (available here). The plan confirms that for the foreseeable future, workers should continue to work from home wherever possible. However, if employees cannot work from home due to the nature of their role, the updated guidance provides that they should attend their workplace (providing that it is open). Employers in sectors of the economy permitted to reopen (or which have not been required to close during the lockdown) should do so, including those in the food production, construction, manufacturing, logistics, distribution and scientific research industries. Exceptions to this general rule include employers such as hospitality and non-essential retail, which are required to remain closed during the first step of the Government’s phased plan.
In terms of travelling to and from the workplace, the phased plan states that all individuals should continue to avoid public transport wherever possible, and employees should be encouraged to use alternative means to commute to work In order to facilitate this, the government has proposed to increase funding and provide new statutory guidance to encourage local authorities to widen pavements, consider road closures in cities, and create pop-up cycle lanes. Additionally, on 12 May 2020 the UK government published new guidance on how to make journeys safely. The guidance states that those who have to travel to work should consider alternatives to public transport, and urges people to consider cycling, walking or driving where possible.
For those who have to use public transport, the guidance includes recommendations to
(i) keep two metres apart from others;
(ii) wear a face covering;
(iii) use contactless payments; and
(iv) wash and sanitise hands as soon as possible before and after travel. All transport operators have been issued guidance, and the Transport Secretary has spoken to providers to ensure that the number of available services is increased. For more information, please see here.
Health and Safety
Where workplaces are open, government guidance states that employers should follow the new “COVID-19 Secure” guidelines (published here on 11 May 2020), as soon as practicable. The guidelines cover "5 steps to working safely" as well as eight workplace specific guidance documents. The five key points are to:
- Carry out a COVID-19 risk assessment (in line with HSE Guidance ), in consultation with workers or trade unions. Employers should share the results of the risk assessment with their workforce and on their websiteCarry out a COVID-19 risk assessment, in consultation with workers or trade unions. Employers with over 50 employees will be expected to publish the results of their risk assessments on their websites.
- Develop cleaning, handwashing and hygiene procedures. Employers should support thean increase in the frequency of handwashing and surface cleaning. Workplaces should be cleaned more frequently (paying close attention to high-contact objects like door handles and keyboards), and employers should provide handwashing facilities or hand sanitisers at entry and exit points, as well as hand drying facilities.
- Help people to work from home by discussing home working arrangements, ensuring they have the right equipment to do so (for example remote access to work systems), including them in all necessary communications, and looking after their physical and mental wellbeing.
- Maintain 2 metre social distancing wherever possible (e.g. by re-designing workspaces, creating one way traffic systems, using floor markings, putting up signs, avoiding sharing workstations and switching to see visitors by appointment only if possible).
- Where people cannot be two metres apart, manage transmission risk (e.g. by considering whether an activity needs to continue for the business to operate, keeping the activity time involved as short as possible, using screens or barriers to separate people from each other, using back-to-back or side-to-side working whenever possible, staggering arrival and departure times and reducing the number of people each person has contact with by using ‘fixed teams or partnering’.).
The initial eight workplace setting COVID-19 secure guidelines released on 11 May cover:
- Construction and other outdoor work;
- Factories, plans and warehouses;
- Labs and research facilities;
- Offices and contact centres;
- Other people's homes;
- Restaurants offering takeaway or delivery;
- Shops and branches; and
On 25 May 2020, the government updated the guidance for shops and branches to reflect industry feedback and to expand coverage of non-essential retail categories ahead of the planned reopening (from 1 June and 15 June 2020, as outlined above).
Notwithstanding the legislation and guidance relating to COVID-19, employers should ensure that they are taking any necessary steps to protect their employees in any event. All employers have health and safety obligations to keep employees informed about health risks that may arise in carrying out their duties and to ensure that working practices do not create undue risks to employees.
Government guidance suggests that it is good practice for employers to:
- keep everyone updated on actions being taken to reduce risks of exposure to coronavirus (COVID-19) in the workplace;
- ensure employees who are in a vulnerable group are strongly advised to follow social distancing guidance;
- ensure employees who are in an extremely vulnerable group (and should be shielded) are supported to stay at home;
- ensure that employee contact numbers and emergency contact details are up-to-date;
- ensure that managers are able to spot symptoms of COVID-19 and are clear on any relevant processes and procedures, including sickness reporting and sick pay;
- ensure there are appropriate places to wash hands with soap and water for 20 seconds, and encourage all employees to do so regularly;
- provide hand sanitiser and tissues for staff
- ensure spaces in the workplace are optimised to allow social distancing, wherever possible; and
- have visible signs in the workplace reminding employees not to attend work if they have a fever or cough, and to avoid touching their eyes, nose and mouth with unwashed hands (poster and leaflet materials are available here).
During this time, communication with employees is key for employers. If you haven't already done so, we further recommend employers notify employees where they can access more information if they are concerned.
For employers in the care industry, a new dedicated app for the adult social care workforce in England has been launched to support staff through the COVID-19 pandemic. Care workers can get access to guidance, learning resources and other supports from the Care Workforce app, which can be downloaded now. For more information, please see here.
As with day-to-day operation of the business, employers must be mindful not to treat anyone less favourably based on a protected characteristic such as disability, race or ethnicity.
It has become apparent that the COVID-19 outbreak is having a particular impact on employees with certain protected characteristics, including female, disabled and older employees. Accordingly, the Equality and Human Rights Commission has published guidance reminding employers that discriminatory decisions may not only result in employment tribunal claims, but also reputational damage (available here). The guidance outlines examples of how discrimination may occur in the workplace during the pandemic, and reminds employers that:
- Decisions regarding which employees are given extra hours or made redundant must not be based on protected characteristics.
- Employees should be involved in decision-making processes in a way that considers their protected characteristics. For example, employees on maternity leave should be included in workplace communications and employers should ensure thatthey communicate in an accessible way with disabled employees.
- Working arrangements should be set up in a way that does not disadvantage employees with certain protected characteristics (such as those in particular age groups, disabled employees, women or pregnant employees).
The guidance expressly states that individuals chosen for home working, reduced hours or furlough should be selected based on business requirements and not a protected characteristic. Employers are also encouraged to think about ways in which disabled employees can work from home(whether in their current role or a different role) through the making of reasonable adjustments. In addition, the "COVID-19 Secure" guidelines suggest the following steps may be necessary:
- Understanding and taking into account the particular circumstances of those with different protected characteristics.
- Involving and communicating appropriately with workers whose protected characteristics might either expose them to a different degree of risk, or might make any steps you are thinking about inappropriate or challenging for them.
- Considering whether you need to put in place any particular measures or adjustments to take account of your duties under the equalities legislation.
- Making reasonable adjustments to avoid disabled workers being put at a disadvantage, and assessing the health and safety risks for new or expectant mothers.
- Making sure that the steps you take do not have an unjustifiable negative impact on some groups compared to others, for example, those with caring responsibilities or those with religious commitments.
What assistance is the Government providing employers?
The UK Government has introduced the Coronavirus Job Retention Scheme (CJRS) in an effort to support employers whose operations have been severely affected by COVID-19. The CJRS is also known as the "furlough" scheme. Under the CJRS, the government will reimburse employers for 80% of 'usual monthly pay' (up to a cap of £2,500 per month per employee). An overview of the key features of the CJRS is available here.
For further information on other Government financial support packages, including in respect of the self-employed, see our update here. Additionally, the Department for International Trade is hosting a series of coronavirus (COVID-19) webinars, free for SMEs across the UK. Businesses can find further details and register for webinars via great.gov.uk.
Can employers request or require information from an employee, customer or workplace visitor about potential or actual exposure to the virus?
The question of whether an employer can ask an individual to sign a declaration about where they have been, their exposure to the virus, or be required to provide health information sits firmly in the crossover between data privacy and employment.
Aside from applicable obligations under employment law, any personal data that an employer processes, including in relation to their location or their health, must also be processed in line with the applicable privacy requirements. Information about an employee's health (such as whether the individual has been diagnosed with the virus or is suffering from any symptoms) is sensitive personal data and additional requirements and obligations will therefore apply to the processing of such data. Despite the GDPR being EU-wide legislation, the position is complex from a European data privacy perspective. We set out below the position in the UK, but also have available to you our cross-jurisdictional Q&A on important HR data related questions available here. The chart includes guidance on steps employer can or must take when re-opening the workplace (including temperature checks) in respect of employees, visitors and agency workers.
On 20 March 2020, the European Data Protection Board (the European data protection advisory body, formed of representatives of national data protection authorities) (the "EDPB") published a formal statement in relation to COVID-19. In relation to whether an employer can disclose that an employee is infected with COVID-19 to their colleagues, the EDPB advises that this should be done only where necessary (e.g. in a preventive context) and where national law allows this. In such case, the concerned employees should be informed in advance and their dignity and integrity should be protected.
In the UK:
- Employers should only collect the minimum amount of information relevant for the purpose identified and must identify a lawful basis and exemption for processing such information.
Employers must also comply with the other key data protection requirements when processing the data, including key data protection principles and obligations such as transparency and accountability, and applicable security and integrity requirements. This includes informing data subjects of the purpose of the processing, relevant legal basis, who data is shared with, how long it will be retained for, whether it is transferred outside the EEA and any safeguards in place to protect its security on transfer, and providing information on the data subject's individual rights in relation to the data. The employer should also ensure that it has implement taken steps to ensure that the data collected is not kept for more longer than is needed for the relevant purpose (in this case, likely to be a few weeks at most).
- In the context of the pandemic, employers should in most cases be able to process such employee information on the basis of the general duty to provide a safe and secure working environment under the Health and Safety at Work etc. Act 1974. This will be limited to information used only in the context of health and safety, e.g. decisions relating to office closures or disinfecting the workplace.
- Where this is the ground relied on, employers would need to show that the collection of employee information is necessary to protect the health, safety and welfare of their employees, and should document their consideration of the risk to employees and any alternatives considered.
- Employers would need to have an appropriate policy document in place for such processing and comply with key data protection principles and obligations (such as transparency, data minimisation and security requirements).
- The UK's national data protection authority, the Information Commissioner's Office (or "ICO" for short) has stated that it understands that "resources, whether they are finances or people, might be diverted away from usual compliance or information governance work" and that it won't penalise organisations that it knows "need to prioritise other areas or adapt their usual approach during this extraordinary period" (see the ICO's guidance available here and here and our HR data table here for further details)
The position regarding European data privacy rules and how they impact information in the context of COVID-19 is developing. A number of EU governments have issued further guidance and have introduced emergency legislation covering the treatment and use of employee data in these extraordinary circumstances. The position will need to be kept under review as the situation evolves and further guidance becomes available.
For workplaces that are still open, what should employers do if an employee is absent or infected?
The government’s announcement on 11 May 2020 confirmed that anyone who has symptoms, however mild, or is in a household where someone has symptoms, should not leave their house to go to work. Those people should self-isolate, as should those in their households.
The statutory sick pay ("SSP") regime has been temporarily amended by the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020, the Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020 and the Statutory Sick Pay (General) (Coronavirus Amendment) (No. 3) Regulations 2020 on 13 March 2020, 28 March 2020 and 16 April 2020 respectively. As a result, qualifying employees who self-isolate because they:
- have symptoms of coronavirus and are staying at home for seven days;
- live with someone who has symptoms of coronavirus and are therefore staying at home for 14 days;
- are in the second category and then develop symptoms themselves; or
- are defined in public health guidance as extremely vulnerable and at very high risk of severe illness from COVID-19 because of an underlying health condition; and
- have been advised by a notification (sent to, or in respect of, them) that, in accordance with that guidance, they need to follow rigorously shielding measures for the period specified in the notification,
and are therefore unable to work due to coronavirus will be entitled to SSP. The usual waiting period of three days before SSP becomes payable has been suspended, meaning that SSP can be paid from the first day of coronavirus-related absence. These provisions apply retrospectively from 13 March 2020.
By law, medical evidence is not required for the first seven days of sickness. As at time of writing (27 May 2020), the Government guidance is that if an individual has COVID-19 or are advised to stay at home, they can get an ‘isolation note’ by visiting NHS 111 online, rather than visiting a doctor. For COVID-19 cases this replaces the usual need to provide a ‘fit note’ (sometimes called a ‘sick note’) after seven days of sickness absence.
In the event that an employee has to take sick leave due to COVID-19, eligible employers may be able to reclaim SSP payments made to employees (which are usually payable at a rate of £95.85 per week). Under the Coronavirus Statutory Sick Pay Rebate Scheme, the UK government will reimburse small and medium-sized employers (i.e. those with fewer than 250 employees as at 28 February 2020) for any SSP payments made to current or former employees for eligible periods of sick pay starting on or after 13 March 2020. The repayment from HMRC will cover up to two weeks of SSP and will cover employees who are unable to work because they (i) have coronavirus, (ii) are self-isolating and are unable to work from home, and/or (iii) they are shielding (as they are at high risk). The online portal to make a claim launched on 26 May 2020 and can be accessed here.
Details of the interaction between furlough leave and sick leave/SSP are incuded in our overview of the CJRS which can be accessed here.
UK schools are currently closed except for children of 'key personnel' or who are classified as vulnerable (although as outlined above, are expected to reopen to certain year groups from 1 June). If employees are unable to work because they need to look after their children or a relative who has coronavirus, they may be legally entitled to reasonable unpaid time off (and the right not to suffer detriment as a result of invoking this right). In addition to this statutory right, you may also have a policy on leave to care for dependants, which could be triggered in these circumstances. Such employees may also be "furloughed" under the CJRS.
What are employers' obligations where offices are partially or fully closed?
As mentioned above, the UK government has not specifically required closure of workplaces other than those specified above (pubs, restaurants, etc). However, in accordance with the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, individuals should work from home unless absolutely necessary.
In case of a temporary business closure, employers are obliged to continue paying employees' wages in full unless there are contractual provisions that can be relied upon or parties specifically agree otherwise, for example with a view to taking advantage of the CJRS (see above).
Employers may exercise their right to require employees to take paid holiday at a specific time, provided that they comply with the relevant notice requirements. Details of the interaction between "furlough" leave and annual leave are set out in our overview of the CJRS which is available here.
Can employers discipline employees during the pandemic?
ACAS has released guidance outlining that existing employment laws and the ACAS Code of Practice on Disciplinary and Grievance Procedures continue to apply. The guidance notes that it is for an employer to decide if it would be fair and reasonable to start or continue a disciplinary or grievance procedure where an employee is (i) furloughed, (ii) working from home, and/or (iii) social distancing, or following other public health guidelines.
The guidance also provides practical advice on disciplinary procedures for workers who are "furloughed" or working from home, and, confirms that furloughed employees can participate in a disciplinary or grievance investigation or hearing, in certain circumstances. However, it is unclear how the ACAS guidance should be read alongside the requirement for employees to "cease all work" during furlough. It is our view that involvement in a disciplinary process may amount to "work" during the furlough period, and as such, following such guidance could mean that an employer is unable to claim for reimbursement of the employee's wages under the CJRS.
The guidance is available here.
Where can employers and employees access local and national advice?
Please find relevant guidance from the UK government as well as the Advisory, Conciliation and Arbitration Service (ACAS) here:
- Government CJRS Guidance:
- 'Check if you can claim for your employees' wages through the Coronavirus Job Retention Scheme' guidance - click here
- 'Work out 80% of your employees' wages to claim through the Coronavirus Job Retention Scheme' guidance and calculator - click here
- 'The Coronavirus Act 2020 Functions of Her Majesty’s Revenue and Customs (Coronavirus Job Retention Scheme) Direction' - click here
Last reviewed 27 May 2020
See also our Coronavirus (COVID-19) page.