Coronavirus – Issues for Employers
Coronavirus COVID19 is fast becoming the largest public health issue of the 21st century as the virus spreads from its origins in Wuhan in China to become a truly global epidemic. This inevitably has implications for employers which range from general duties on preventing the spread of the disease to more specific issues involving individual employees.
What should we be doing as a matter of good practice?
There are a number of general measures which employers can take to prevent the spread of the virus:
- make sure contact numbers and emergency contact details are up to date
- make sure managers know how to spot Coronavirus symptoms and are clear on any relevant processes in case someone in the workplace develops the virus
- make sure there are clean places to wash hands with hot water and soap, and encourage everyone to wash their hands regularly
- give out hand sanitisers and tissues to staff, and encourage them to use them
- consider if protective face masks might help for people working in particularly vulnerable situations such as health care environments
- consider if any travel planned to affected areas is essential
It is also important that employers deal sensibly with this issue and avoid contributing to public and workplace hysteria. In particular, employers should avoid singling out individuals and should ensure that individuals are not treated differently within the workplace because of their race and ethnicity.
What should we do when employees ring in sick with the Coronavirus?
Employees who have Coronavirus or suspected Coronavirus should receive the workplace’s usual sickness and leave benefits. Employers should recognise that it may be difficult for employees who have the virus to obtain a fit note in the normal way particularly if they are under instructions to self-isolate for 14 days. It may be appropriate in these circumstances for employers to relax their usual requirements for medical evidence to be provided.
It is, of course, possible that some employees will seek to fake or exaggerate symptoms to obtain the benefit of 14 days off work. However this is the same as any scenario involving sickness absence and employers need to use judgement in determining whether illness is genuine and whether medical certification is required. The best advice is to trust your staff unless you have good reason not to.
What should we do about employees who are travelling back from affected areas?
It should first of all be noted that what is classified as an ‘affected area’ is changing on a daily basis. Current Home Office guidance suggests the most seriously affected areas are the origin areas in China but also Iran, parts of Northern Italy and South Korea. Individuals travelling back from these areas should self-isolate for a period of 14 days irrespective of symptoms. For other parts of China and East Asia, the Home Office suggests that self-isolation is only necessary where there is some evidence of symptoms.
Where employees travelling back from these areas seek to self-isolate for 14 days employers will have a judgement to make on how this absence should be treated. Technically employees who are not symptomatic do not have any entitlement to pay because they are not sick and are not available to work. However employers also have a wider duty to protect other employees and the wider public and there is a risk that where pay is withheld employees could argue this is a breach of trust and confidence potentially triggering a constructive dismissal claim.
It is therefore suggested that if the employee’s circumstances meet the Home Office’s criteria it is best practice to agree a period of home working on full pay for the 14-day self-isolation period. If home working is impracticable due to the nature of the role then the next best alternative may be a period of paid special leave.
If employees do not agree a period of home working and wish to attend work employers will have to make a judgement on whether to medically suspend on full pay or utilise a Garden Leave clause in their contract. It is suggested that it will be appropriate to do so only where Home Office guidance provides that individuals should self-isolate irrespective of symptoms. This is a fluid situation and employers should monitor the Home Office website for further updates.
What if employees do not want to come to work?
Some employees may be worried about catching Coronavirus and unwilling to come into work. Employers should listen carefully to the concerns of staff and it may be appropriate in some circumstances to offer flexible arrangements such as homeworking or for employees to take time off as holiday or unpaid leave.
It is also the case that COVID19 is unlikely to leave us any time soon and many employers will be unable to accommodate measures of this nature in the longer term. If an employee refuses to attend work an employer is ultimately entitled to take disciplinary action which could include sanctions leading up to dismissal. If you are considering dismissing an employee in these circumstances you must ensure that you act reasonably and, we would suggest, only do so with the benefit of legal advice.
If you are dealing with Coronavirus related issues in the workplace and are seeking further guidance and support please contact our employment team.
Claire Knowles - Partner
Mark Alaszewski – Associate
Rebecca Mahon – Solicitor
Amelia Wheatstone - Solicitor
Adam McGlynn - Trainee Solicitor