The outbreak of Novel Coronavirus (COVID-19) in China has sparked fears of a worldwide pandemic. At the time of writing, the majority of cases are concentrated in China, Japan and South Korea but the recent outbreak in Italy means the risk now feels much closer to home. Understandably, this may be creating concern amongst your workforce, particularly where staff are required to travel internationally to carry out their roles. This month we take a look at the steps employers can take to protect and reassure their employees and ensure they understand their legal obligations.
First and foremost, employers should ensure that they are taking any necessary steps to protect their employees. 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. Employers should therefore carry out a risk assessment, considering any factors that may make their employees particularly susceptible to infection. For example, if your business requires a high degree of international air travel this will be a relevant risk factor and you should consider if there are any ways that you can mitigate that risk. Would it be appropriate to introduce a travel ban? Should this be restricted to particular areas? Could you limit non-essential travel? You will need to ensure that you keep a watching brief on government advice regarding travel and ensure you update your policies accordingly. The government has recently issued guidance to employers, which includes links to travel advice and recommended responses to various scenarios, including what to do if someone becomes ill with suspected COVID-19 in the workplace.
Employers should consider circulating up to date information on good hygiene practices and provide any necessary equipment to facilitate this, such as hand sanitisers. Issuing more general factual guidance on the virus may help keep workplace tensions to a minimum and reduce the risk of employees who have had the illness, or been exposed to the virus, being treated unfairly. Employers must not treat anyone differently based on protected characteristics such as their race or ethnicity; be careful if asking employees to use protective masks or not to come into work, for example, that those requests do not single out employees or workers with a particular protected characteristic and be ready to take steps promptly to stop any ill-treatment or bullying within the workforce along similar lines.
Employers may see a spike in employee absences over the coming weeks. Employees may be concerned that going into work could increase their chances of contracting the virus, they may need to take time off to look after relatives who become ill, they may self-quarantine due to fears they have contracted the virus, or they may simply be more likely to call in sick because they are more alert to potential symptoms. An employer's response to absences at this time will differ in each scenario.
ACAS has published guidance on how to navigate coronavirus issues in the workplace. ACAS advises that employers listen to any concerns staff may have about catching coronavirus at work and offer flexible working, and in particular homeworking, where possible. If this is not possible, you may agree with the employee that they take time off as holiday or on an unpaid basis, although the employer is under no legal obligation to agree to this.
You will need to ensure you understand employees' statutory and contractual rights and obligations if they contract coronavirus. You may wish to proactively remind employees of your sickness policy and clarify the position that the company is taking for coronavirus-related absences to keep genuinely sick employees away from the workplace and safeguard other employees. The usual procedure may need to be amended if, for example, the employee is unable to get a sick note because they are quarantined or if they are advised to take a longer period than normal between recovery and return to work to minimise the risk of infection. You will need to continue to pay employees – unless you have a clear contractual right not to do so - if you ask them not to come into work because they have been to an area with a coronavirus outbreak. You may need to consider whether any employees may have a heightened risk of infection and ensure that you deal with this sensitively.
If employees are unable to attend work because their child's school has been closed or they need to look after 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.
How to deal with quarantined employees
Your sickness policy is unlikely to cover situations where employees are not actually sick but are in self-isolation or quarantine because they are concerned that they may have been exposed to the virus. As the NHS is currently advising people who may have come into contact with the virus to self-isolate for 14 days and some UK schools are temporarily closing if children have been on holiday in northern Italy, the risk of significant numbers of UK workers being quarantined and unable to attend work is becoming increasingly likely in the UK. You should consider how you would deal with such scenarios and ensure that you take a consistent and clear approach. There is no statutory right to sick pay in such situations but ACAS suggests it is good practice to treat quarantine as sick leave and to follow your normal sick pay policy or otherwise agree for the time to be taken as holiday. Although you may wish to consider whether you would treat medically-sanctioned quarantine in the same way as self-directed isolation, you should ensure that your approach and policies do not inadvertently help the spread of the virus by encouraging employees to come into work when they should really remain at home.
It is unclear at the moment how long this outbreak could last and the severity of its effects. In addition to considering immediate policy issues such as adapting your sickness procedures and publicising your remote working policy, businesses may need to think about longer-term issues such as how to deal with ongoing levels of absence or protracted travel restrictions. Do you have agreements with external resourcing agencies and, if so, might it be worth talking to them now about how they could help augment your workforce if significant parts are affected by coronavirus? Could you train existing employees and workers to cover business critical positions? You may also want to consider how your business can best position itself internally to navigate the coming weeks – who will be responsible for making coronavirus-related decisions that will impact the business and employees and which communication channels will be used to keep employees up to date? Employers will need to ensure they have up to date contact details for all of their staff and reliable emergency contact procedures. The government is currently advising that it does not recommend that workplaces should be closed if a member of staff or the public with confirmed COVID-19 has recently been at the workplace and that the local Public Health England health department will contact the employer to discuss the case and any recommended actions. However, if this advice changes and employers decide to close workplaces temporarily, employees must be paid in full for the duration of the closure unless the employment contract states otherwise. In some limited circumstances, an employer may "lay off" employees for a temporary period without pay where they have an express contractual right to do so, but this tends to be limited to particular sectors and types of workers, such as manufacturing and/or piece workers. In such circumstances employees may claim statutory redundancy payments or receive statutory guarantee payments if they meet the relevant criteria for each type of payment. As an alternative, employers may wish to exercise their right to require employees to take (paid) holiday at a specified time, provided that they comply with the relevant notice requirements.
Some advance planning now for various scenarios - ranging from how to deal with different types of absences to what circumstances might necessitate a temporary facility closure - could help your business deliver a speedier and more effective response if coronavirus becomes a more widespread problem in the UK.