By Lauren Wilson, Trainee Solicitor.
THE INFORMATION CONTAINED WITHIN THIS ALERT WAS ACCURATE AS AT 28 FEBRUARY 2020.
Guidance has been released from the Department of Health and Social Care, the NHS and from ACAS in relation to the Coronavirus outbreak.
We recognise that many employers will be receiving queries from staff about Coronavirus. Even if not, you may be wondering how the outbreak is going to affect your business.
In this update, we have summarised the guidance from various bodies to try to address some of the most common questions employers will have. However, in a quickly evolving situation, we recommend you regularly check gov.uk for the latest official advice.
Who is being advised to stay at home and seek medical attention and/or guidance?
- Currently, those who have travelled to:
- Hubei province in China in the last 14 days, even if they do not have symptoms
- Iran, lockdown areas in northern Italy or special care zones in South Korea since 19 February, even if they do not have symptoms
- other parts of mainland China or South Korea, Hong Kong, Japan, Macau, Malaysia, Singapore, Taiwan or Thailand in the last 14 days and have a cough, high temperature or shortness of breath (even if symptoms are mild)
- other parts of northern Italy (anywhere north of Pisa, Florence and Rimini), Cambodia, Laos, Myanmar or Vietnam since 19 February and have a cough, high temperature or shortness of breath (even if symptoms are mild)
- Anyone who has been to the H10 Costa Adeje Palace Hotel in Tenerife on or after 17 February, if experiencing symptoms within 14 days of travel.
Who should be attending work?
Anyone who does not fall into any of the above categories and who is otherwise fit and well, should report for work. If they do not, for example due to concerns they may contract the virus whilst at work, they are unlikely to be entitled to pay, but you could allow them to use annual leave if your business is able to accommodate it.
What should we be paying anyone advised to stay at home?
Clear communication with affected staff is going to be essential. Anyone who has travelled to affected areas and who is not well enough to be at work, can be paid sick pay as normal.
Strictly speaking, anyone who has travelled to these areas but does not have symptoms, does not have the right to be paid if they do not present for work. However, if you do not pay them, they may choose to ignore official guidance and present for work. If they do so, and you then send them home, they would be entitled to full pay. To avoid this scenario, you may wish to pay them sick pay even if they are not showing any symptoms.
If you choose to send an employee home due to fears that they may have visited one of the places mentioned above, you will require to pay them full pay.
Where an employee requires to self-isolate as a result of official advice, you may wish to look at exploring options for working from home, if this is practical and the employee is fit to do so. While you are not legally required to pay somebody who is self-isolating as a precaution, it may be advisable to do so, as not paying the employee could conceivably be found to breach the implied duty of trust and confidence, thus creating a constructive dismissal risk.
What if an employee’s family member has just returned from a trip to one of the affected areas and we cannot be sure if there is a risk?
This will need to be considered on a case-by-case basis, and the family member will presumably be self-isolating. Where you are making the decision to send a non-symptomatic employee home, our recommendation would be to pay them for the period that you have asked them not to come to work. If you can let them work from home, you can ask them to do so.
What should we do if a worker (A) refuses to work alongside a colleague (B) because they believe that B has the virus?
Generally, if B has not been to one of the places mentioned above within the timescales outlined, you could give a management instruction that A is obliged to work with B.
However, we do not currently recommend that you seek to discipline employees for this type of refusal. Instead, we suggest that you meet with the concerned employee to better understand the basis for their concerns before deciding upon next steps.
What if a worker has been to one of the highlighted areas and is presenting symptoms whilst at work?
ACAS have issued guidance that any such workers should:
- stay at least 2 metres away from other people
- go to a room or area behind a closed door
- avoid touching anything
- cough or sneeze into a tissue and put it in a bin, or if they do not have tissues, cough and sneeze into the crook of their elbow
- use a separate bathroom from others, if possible
- use their own mobile phone to phone NHS 111 or for an ambulance if they are seriously ill
- tell the operator their symptoms and where they have travelled to (and when)
Some of the commentary released suggests that your workplace will not necessarily have to close, but that guidance should be followed from the relevant public health authority. We understand that where an employee on your premises reports symptoms to NHS111 and has travelled to an affected area, the relevant public health authority will then contact you. However, in case you need to contact them, we understand the best numbers to call are 020 7654 8000 (Public Health England) or 0141 414 2888 (NHS Scotland).
Is there anything else we should be doing?
- You may wish to inform all staff that in light of the current Government guidance, they are obliged to inform you if they have travelled to any of the highlighted areas or if they intend on travelling to any of these places.
- It would also be prudent to remind staff of good hand hygiene and processes for disposal of tissues etc.
- Employers should also give clear instructions to staff on how, and to whom, any concerns about Coronavirus should be raised.
- It would be prudent to remind staff of absence reporting procedures so that clear channels of communication can be maintained throughout any periods of staff absence. Although you should not expect staff to submit medical certificates as those being advised to self-isolate should not attend their GP practice.
- If any staff have genuine concerns about coming to work, but are not (for whatever reason) in a position to be paid sick pay, you could consider requests for holidays or unpaid leave.
What else should we be mindful of?
Employers should be mindful that discrimination laws will continue to apply during the outbreak. No employee should be treated less favourably by their employer or by any other staff member, for example because of their race or nationality. In this regard, it is vital to understand that employees are protected from discrimination based on perception too.
If you would like to discuss your approach to managing these issues from an employment law perspective, or if you require support or advice on any specific matters, please do not hesitate to contact the team on 0141 331 5150.