Chris Dobbs, a solicitor in our specialist Employment & HR Team looks at how recent government advice about Coronavirus quarantine could affect employers.
Coronavirus : The six main considerations for employers
- Employers should pay close attention to the national law of any country where they operate or have staff currently located
- Pay equal attention to all announcements from the UK government and bodies such as the World Health Organisation
- Consider the need to consult with work councils if these apply to you as a transnational employer or unions where this might be relevant
- An employee who is medically signed off will be eligible for sick pay in accordance with company policy and/or statutory provisions
- Be consistent in your policies and procedures to limit claims for unfair treatment and/or discrimination
- There is a fine balance between effective communication and contributing to undue panic
What is coronavirus?
Coronavirus is actually a very common virus globally which usually only causes diseases in animals. Other strains, including the current one declared a ‘global health emergency’ by the World Health Organisation, have made the jump to humans. The spread of the virus around the world and within the UK is only likely to rise and so employers should be considering how to respond to employees intending to visit ‘hot spots’, contracts the virus here in the UK, or is absent from work.
The virus was first reported in Wuhan, China late in December 2019 where people started to experience flu-like symptoms. Those symptoms, untreated, can develop into pneumonia and cause serious respiratory problems as well as cause damage to the kidneys. The usual high risks groups are all at greater risk of compilations: the elderly, people with existing respiratory conditions, those with weakened immune systems and people with chronic conditions such as cancers or diabetes.
The virus has now seen a very well-documented spread across every continent with suspected cases now in Brazil marking the first possible appearance in South America.
Coronavirus: Duty of care to employees
The duty of care to employees continues to exist and in the UK there is a statutory duty to look after employees’ health and safety. The CIPD have gone even further this and indicated that employers have a “moral responsibility to ensure employees feel safe and secure in their employment”.
Where there is a realistic prospect of coronavirus affecting a workplace, employers should risk assess for it as they would for any other possible risk to health and safety. If a risk is identified, appropriate steps should be taken to mitigate the risk to health and safety.
The first point is to consult your sickness absence policies as this is no different from any other sickness absence in the first instance. You should have an effective sickness absence plan in place to manage the situation and maintain reasonable contact with the employee concerned.
Employees should be reminded of the policy as well as being reminded of any specific hygiene procedures relevant to workplaces. You may want to provide sanitising gels and increase general awareness of hygiene and any latest news about the infection in a calm manner.
Quarantine: Paid or unpaid Leave?
The normal position is that employees are entitled to pay only when they are working or on some authorised form of absence such as annual leave.
If they are on holiday or fall ill while on holiday, they should continue to be paid as normal until the planned end of that holiday, or be paid in accordance with sick pay policies where appropriate. If an employee continues to perform work while abroad, they should be paid their usual salary.
Working from home or remote working with coronavirus
The matter complicates if they are due back at work but cannot return due to travel restrictions and remote working is impossible. In some situations, the employee may benefit from a contractual entitlement but this is very unlikely. If the reason for going abroad was work-related then it would probably be reasonable to continue to pay until they return or until they were in a position where they were able to do so.
Employees who voluntarily travel(led) to an infected country for personal reasons and are stuck there are not necessarily entitled to be paid. In the circumstances, however, you may want to consider a discretionary payment or ask them to take the time as unpaid leave and/or holiday. Whatever you do, all employees should be treated consistently to avoid the risk of discrimination,
Returning employees and isolation or quarantine
Government advice is that individuals who have travelled from certain affected areas should self-quarantine even if they do not have symptoms. The advice is broadly the same for anyone who has travelled to an infected area and now has symptoms.
Check where an employee has been against the latest government advice before requiring them to isolate.
Affected employees should be asked not to come to work until after the incubation period is over and they are no longer displaying symptoms. This is not necessarily sick leave if the employee is well enough to work and our advice is that you continue to pay employees for this period if possible. In effect, this is an imposed suspension from work. This is also more likely to encourage the employee to comply with the advice and not bring the virus into your workplace.
Employment contracts may also contain a provision allowing annual leave to be imposed. If so, this right could be used in these circumstances and the employee would receive holiday pay for this absence.
Coronavirus symptoms: Employees refusing to come to work
If your employee is refusing to come to work but you believe they are well enough to attend then our advice is always to be careful. You are not a medical expert and do not know what is wrong with the individual so the first step is to engage in dialogue with them about why they are off, why they feel unable to return to work and what can be done to facilitate their return.
If no arrangements can be reached with an employee, disciplinary action is viable either for conduct if the employee is just refusing to attend work or for sustained sickness absence/capability. Again, both should be handled carefully to avoid discrimination or constructive/unfair dismissal claims.
Cancelled holiday plans due to coronavirus outbreak
Although employers are under no obligation to do so, it does seem reasonable to show sympathy and some flexibility if employees decide to cancel holiday plans to affected areas. If at all possible, employers may wish to accommodate requests to save some of that time and also keep in mind that annual leave can become sick leave if an employee falls ill. It is perfectly acceptable to request medical evidence of this.
Chris Dobbs' advice for employers on coronavirus
Coronavirus is no different to any other sickness that might affect the workplace at this stage. An individual can self-certify for a week after which employers have the right to request a fit note. Sickness absence policies should be followed but employers may want to exercise a degree of flexibility in all circumstances.
The media has created significant hype around the virus. There are, at present, only a handful of confirmed UK cases and while numbers are likely to increase it is worth remembering that 5-10% of the population contract ‘flu every year.
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate, Paul or Chris will be happy to discuss it with you.
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