Below are some of the issues and questions which might be impacting your business in light of the current Coronavirus outbreak. This summary is based on current Public Health England and government advice as at 5 March 2020. The advice and messaging around the Coronavirus (or COVID-19) is changing rapidly. The main themes are be: vigilant, prepare and be flexible (or as much as you can be) in this developing situation. It is important to check government websites as well as take specific legal advice.
This advice was drafted on 10 March 2020, before the Job Retention Scheme was announced and may be out of date. For up to date information about the Job Retention Scheme click HERE.
Information about the virus
COVID-19 is a new strain of coronavirus first identified in Wuhan City, China in January 2020. The incubation period of COVID-19 is between 2 to 14 days. This means that if a person remains well 14 days after having contact with someone with confirmed coronavirus, they have not been infected. The following symptoms may develop in the 14 days after exposure to someone who has COVID-19 infection: cough, difficulty in breathing and fever. Generally, these infections can cause more severe symptoms in people with weakened immune systems, older people, and those with long-term conditions like diabetes, cancer and chronic lung disease. Also there is a concern for those who are pregnant.
How is COVID-19 spread?
There are two main routes by which COVID-19 is spread:
the infection can be spread to people who are nearby (within 2 metres) or possibly could be inhaled into the lungs;
someone may become infected by touching a surface, object or the hand of an infected person that has been contaminated with respiratory secretions and then touching their own mouth, nose, or eyes (such as touching door knob or shaking hands then touching own face)
How can we support our business, staff, customers and guests during this time?
The key messages are: be vigilant, prepare and be flexible. With these in mind, let’s focus on the following.
Keeping up to date – with information from the relevant government departments and ensure that this information is communicated to staff as well as guests and visitors to your site or office.
Remember health and safety obligations – employers must take reasonable steps to protect the health and safety of their staff whilst at work (including visitors and guests when on site) and this should be at the fore at this time. The best way to prevent infection is to avoid being exposed to the virus. Public Health England (PHE) recommends following general cold and flu precautions to help prevent people from catching and spreading COVID-19 (e.g. washing hands). Employers might want to look at their cleaning rotas and clean communal areas, surfaces and door handles/buttons, more frequently. Further information is available from PHE and the NHS. Communicate obligations and health warnings with staff/visitors/guests.
Under health and safety obligations, employees also have a responsibility to take reasonable care to ensure that they do not endanger themselves or anyone who may be affected by their actions at work. Remind staff of their obligations. In extreme cases a failure to adhere to your health and safety or emergency policies is a disciplinary offence (and might even lead to prosecutions under health and safety laws).
Risk Assessments – are necessary as part of general health and safety obligations for all staff but particularly at this time. Staff who have cleaning responsibilities, public/client facing roles or in other roles which could increase their risk of infection/spread would need particular attention. Identify where the risk areas are in the business. Pay attention to staff who are disabled (particularly those with diabetes, cancer, underlying conditions or who have respiratory conditions) or who are pregnant. This is really important. Once risks have been identified, employers can then understand what practical steps to take to reduce the risk to public and staff health and safety.
Health Emergencies Policy – have a clear workforce policy in place to deal with emergency health procedures and ensure this is communicated across the workforce. Communicate all relevant emergency procedures to all staff and ensure that staff are properly trained to your emergency procedures to ensure the messages are understood.
Contingency/Continuity Planning – assess your business’s own level of risk and exposure and communicate the contingency plan to key teams and individuals across the business. This will vary from business to business and role to role. For example, those in client/public facing roles may have to take extra care and be extra vigilant, for example, using self-isolation if there is a risk of infection.
Flexible resourcing – develop a flexible resourcing strategy. This could involve identifying your core roles or a possible skeleton staff, those who have transferable skills and also identifying whether any staff could be trained in different areas of the business to provide short term cover. Staff could be asked to work additional hours to cover sickness absence (paying attention to Working Time Regulations 1998 limits) to help the business maintain operational staffing levels. Staff could also be asked to work from home or take holidays as a way of preventing infection spread whilst also maintaining business operations. Also look at other ways your business could be staffed to ensure the business continuity.
Check contracts of employment or work – check agreements now to allow time to plan. What do these say about staff working in different roles or locations? How much flexibility is there in your contracts to change hours?
Set up a “Taskforce” - appoint someone/a panel within the organisation whose responsibility it is to keep up to date with current information and ensure this is disseminated appropriately across the business. Also create a single point of contact to liaise with PHE or local health providers or someone who can co-ordinate prevention plans. It would be wise to include someone with responsibility for contingency planning also to ensure the messages are joined up.
Common-sense approach – have a common sense approach such as providing hand sanitizers, ensuring there is soap, tissues and properly maintained toilet/hand washing facilities. Other things like increased cleaning, communicating with staff about the risks and taking personal precautions and disposing of waste appropriately are also practical things employers can do. Putting up health notices around your workplace and also for visitors and guests would also be sensible.
Communicate – keep communicating with your staff, customers, guests or visitors. Agree how you are going to communicate to all staff – emails, text, and phone. Do you have up to date contact details for everyone? What about your suppliers or contractors – ensure they too communicate with you about any staff etc. issues they might have. Your workforce must also keep their manager/HR informed if they have returned from a holiday to a specific country or area (see above) or if a relative/close friend has (who they have had contact with in the last 14 days since they have returned) whether they have symptoms or not. Communication is key in these situations.
Be as flexible – (as you can be), this situation is changing rapidly, so processes and procedures may need to be flexed to protect health and wellbeing. Remember too that your people, clients, customers and guests will look at how the business have handled this situation; this is a time to think long term in terms of your brand and loyalty to it.
What about staff returning from abroad - what should we do?
There is specific advice from PHE and the Foreign and Commonwealth Office (FCO) about travel. Much will depend on where staff have returned from. For example, people who have returned from Hubei Province, including Wuhan, in the last 14 days should self-isolate whether they have symptoms or not. In terms of other countries, including Italy, there is also advice in place from the FCO. Except in the cases of excluded countries, PHE advise that staff can continue to attend work unless they have been informed that they have had contact with a confirmed case of COVID-19. If individuals are aware that they have had close contact with a confirmed case of COVID-19 they should contact NHS 111 for further advice and also keep you informed.
Should we stop workforce travel?
As above, it depends on the country (ies) in question. What are the circumstances and the nature of the business trip? How necessary is it? Advice ranges from stopping/limiting non-essential foreign and domestic travel, taking extra precautions (e.g. insurance, advice on personal hygiene/precautions) or using video conferencing instead. Other ideas could be to allow staff to travel at quieter times of the day to avoid rush hours or introduce flexible working.
What if individuals in the workplace have come into contact with someone who has confirmed COVID-19?
Contact your local Health Protection Team who will work with you to identify staff that could be at risk. Those who work in close proximity to, who are friends with, who have been coughed on (for a length of time) by someone who is symptomatic would be at main risk. Also, anyone who has cleaned up any bodily fluids would also be at risk of infection spread. Staff who have not had close contact with the original confirmed case might not need to take any precautions and can continue to attend work. Those who are “at risk” will be asked to self-isolate at home for 14 days from the last time they had contact with the confirmed case. These people will be actively followed up by the Health Protection Team and if they become unwell with cough, fever or shortness of breath they will be tested for COVID-19.
Under your SICKNESS ABSENCE POLICIES you should keep in contact with those staff that are infected and also self-isolating so you can assess the situation and make a risk assessment.
Even if individuals have not been advised to medically self-isolate, they may be in roles which might lead to greater risk of infection for your business. In these situations, the advice might be that they too should self-isolate voluntarily.
What if someone falls ill at work with suspected COVID-19?
The key thing is that the individual should be at least two metres (7 feet) away from other people and ideally kept in an isolated room such as a sick bay or staff office. They should avoid touching anything and use a separate bathroom from others, if possible. The unwell person should use their own mobile phone to call either 111 or 999. The business should also follow its continuity plans and contact PHE as steps above will need to be taken in terms of identifying risks.
Could we be asked to close the workplace?
Possibly but current advice is that this is unlikely. In suspected workplace cases, the advice from PHE is to wait for the outcome of test results although encouraging staff to be extra vigilant in the meantime would appear sensible. Similarly, with a confirmed workplace case, again PHE do not recommend closing the workplace. A risk assessment will be undertaken by the local Health Protection Team; for example, you may be advised to undertake a deep clean of communal areas and/or at risk individuals will be identified and appropriate containment steps taken. However, the situation may change depending on the circumstances and who is infected (or suspected of being). If a business is advised to close, the advice is generally that closure should be for a short time for cleaning and/or isolation. Having a clear contingency plan and also a key point of contact is again advisable.
What is employees do not want to go to work?
Some employees have genuine concerns so listen to them. Those with an underlying health concern will be particularly worried at this time. Can you resolve their concerns? For example, if possible, could you offer flexible working, home working or allow holiday to be taken? Ultimately, if an employee unreasonably refuses to attend work, it could result in disciplinary action being taken.
What if a client closes a place of work?
If you have staff working at client sites and they close their place of work think firstly, do these staff need to self-isolate? Your duty is to your staff first and foremost. Work with the client to understand the risks to your people. This might also involve taking advice from PHE. Work with your people – can they be redeployed to other parts of the business reasonably and safely? Can they provide additional cover? Have they been advised to remain isolated (and by who?) or should they do so voluntarily? In these situations check the contract terms with the client – are they still liable to pay you?
In circumstances where staff are available to work but the client has closed, and they cannot reasonably be redeployed into your business, the advice is that they would still have the right to be paid by you (see below for advice in isolation cases).
What about sickness absence rules around certification?
Medical evidence is not required for the first seven days of sickness. After seven days, it is for the employer to determine what evidence they require, if any, from the employee. This is usually a GP sick note. If an employee has been advised to isolate themselves and not to work by NHS 111 or PHE then employers may have to use their discretion around the need for specific medical evidence and ask the employee to self-certify instead. Keeping in contact with the employee would be key to assess their situation but also wider risks to your workforce. If the employee is self-isolating, again discuss with them why they are doing so – are they doing this because you have asked them to, they have been medically advised, there is a risk of infection or they have been in contact with a suspected/confirmed case. Assess the genuineness of the isolation as best you can. Again, if the employee is voluntarily self-isolating, a sensible approach might be to allow them to self-certify for absences of 7 calendar days.
Employees who are ill with the virus would be treated under normal sick pay rules be this Statutory Sick Pay (SSP) or employer sick pay. Where employers have the right to pay discretionary sick pay, it should exercise this discretion fairly and consistently. For issues relating to isolation see below.
A word about medical information and data protection. Information about medical conditions and health is “special category” data. Think about who has access to this information? What do your Privacy Notices say about this type of data? How can we ensure the privacy of our staff, clients and guests? Balance the rights of privacy against the business need to take action.
What do we have to pay staff during periods of self-isolation?
Statutory Sick Pay - employees (and potentially other workers) earning more than the statutory amount per week, who are genuinely ill and who can (if possible) comply with absence notification rules are entitled to be paid Statutory Sick Pay (SSP). The government have announced that those who are self-isolating following professional advice would also be entitled to SSP from day one and not day four where they have been issued with a self-isolation notice by PHE or through NHS 111. This change does not apply (at present) where employees voluntarily self-isolate or are asked to do so by their employer.
Employer sick pay – the position with regard to entitlement to employer sick pay (or pay in general) where an employee is either professionally self-isolating, self-isolating on the advice of their employer or self-isolating of their own volition is grey. The difficulty is that under employer sick pay schemes, the employee is not strictly “ill” – which is of course welcomed. Employers will need to check their sick pay policies but ACAS recommends if somebody is told not to come into work either by their employer or professionally because they have COVID-19 they should get their usual pay. Similarly, if the employee is advised not to come to work either by the employer or professionally because they have come into contact with someone who has the virus or if they may have the virus, then again ACAS says it is good practice to pay employer sick pay. For example, if someone has returned from China or another affected area and their employer asks them not to come in or if the employer says they should remain at home to prevent infection spread they should be paid sick pay. However, if someone is simply self-isolating of their own volition, they would not be entitled to sick pay. Ultimately, it would be at the employer’s discretion whether to pay and such discretion should be used consistently and fairly, remembering that employers will not want people coming into work and spreading the virus so pragmatically, and perhaps sensibly, employees voluntarily self-isolating should be entitled to sick/other pay. The Health Secretary has said that isolation should be treated as sick leave for employment law purposes.
What if we do not offer enhanced sick pay?
Again, the position is unclear. Advice differs but the position has to be, do employers really want staff coming to work who are or could be ill and spreading the virus more widely? If employees can work during the isolation period then they would be entitled to pay. If they are available for work but are told they cannot, then again they should be paid. Employers should decide on their pay strategy and keep this under review given the changing circumstances. The pragmatic approach may be to offer basic salary to those who are in isolation (howsoever arising) or to those with confirmed COVID-19.
Will self-employed people get sick pay?
Broadly speaking, employees are entitled to sick pay and self-employed people are not.
What if a school etc. is closed, for example, what are our responsibilities?
Employees are entitled to time off work to help someone who depends on them (a 'dependant') in an unexpected event or emergency. This would apply to situations to do with coronavirus. For example:
if they have children they need to look after or arrange childcare for because their school has closed; or
to help their child or another dependant if they're sick, or need to go into isolation or hospital.
There's no statutory right to pay for this time off, but some employers might offer pay depending on the contract or workplace policy.
The amount of time off an employee takes to look after someone must be reasonable for the situation. For example, they might take two days off to start with, and if more time is needed, they can book holiday.
If we do have to close our workplace or adopt a shorter working week, what do we need to be aware of?
Under certain contracts of employment (or collective/national agreements), employers may have the right to put employees on “lay-off” or “short-time” (LOST). There may also be a custom and practice within your business of using LOST which you may be able to rely on.
A lay-off situation arises where the employer is unable to provide work, but this is temporary. A short-time situation arises where, due to a reduction in the amount of work to be done, weekly pay or working hours are reduced. This must be a temporary situation and the employer must notify employees before the reduction starts. While placed on LOST, employees with one month’s service will be eligible to receive statutory guarantee pay (SGP) to compensate for the reduction in available work. Individuals will be entitled to SGP for every workless day – this is a day in which they would typically be required to work but their employer has not provided them with any work. Employees can claim redundancy pay if they have been placed on LOST for four weeks in a row, or a total of six weeks in any 13-week period and are earning less than half their usual weeks’ pay.
In the absence of a contractual LOST provision, employers would not be able to enforce LOST without the employee’s consent. To try and enforce LOST could lead to complaints and claims.
Think about alternatives to closing for example: home working, flexible working and holidays.
Offering help and support
This is a worrying time for your workforce. Internal communication, signposting to help (for example EAP or government advice) and offering reassurance to your staff are also advised.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.