Kate Shawcross, associate solicitor in Harrison Drury’s employment law team, outlines the latest coronavirus guidance for employers and explores some of the HR and legal issues.
Article last updated March 17
Yesterday’s instruction from government for staff to work from home where possible marks a significant escalation in the UK’s response to the COVID-19 outbreak.
However, for now the government and its advisers have stopped short of ordering a full lockdown of the population, as we’ve seen in some other European countries.
So, where does that leave businesses and employers who don’t have the capability to offer home working, or where it’s just not an option. Let’s look at the latest guidance.
What should I do if an employee becomes ill?
The current government guidance is for anyone who develops a persistent cough or fever to go home immediately and self-isolate for 14 days if they live with someone, or seven days if they live alone. If an employee has symptoms at work, you are entitled to ask them to go home and / or seek medical assistance if needed.
You should have a designated room or space where employees that feel ill can sit privately away from colleagues while they wait for transport or medical assistance if their symptoms are severe. People are now being advised only to dial the NHS 111 service if their symptoms get worse or are no better after seven days.
What other steps should I be taking in the workplace?
The government yesterday advised people to work from home wherever possible and for businesses to encourage them to do this. If staff are concerned about coming into the office and request to work flexibly, it is important to be flexible and offer homeworking, where you can. Now is a good time to make sure that all staff contact numbers and emergency contact details are valid and up to date so information can be communicated to staff quickly.
For workplaces that remain open, employers should make sure there are clean places for staff to wash hands with hot water and soap and drying with single-use paper towels. You may also look to provide hand sanitiser and tissues for staff, encouraging regular use. Asking staff to wipe down their desks with anti-bacterial wipes every day may also reduce the risk of infection. If you do have a confirmed case of coronavirus, you should look to have the office deep cleaned as soon as possible by professional cleaners.
Am I required to pay sick pay for employees that are confirmed as suffering from the illness or advised to go into self-isolation?
If one of your employees is confirmed to have coronavirus, then the company’s usual sick leave and pay entitlements will apply because they are absent from work due to illness. This information is likely to be set out in your staff handbook or within employee contracts of employment. In most cases, this is likely to be an entitlement to Statutory Sick Pay (SSP), but some employers will offer enhanced company sick pay.
Furthermore, if an employee is advised to self-isolate by a medical professional and provides the employee with a written notice, they are entitled to receive sick pay. These workers will also be deemed to be incapable of work due to illness and so are entitled to SSP. The usual position is that SSP is only payable from day four of any absence (day 1-3 are known as waiting days).
The government announced on 4 March 2020 that it is putting in place emergency legislation to make SSP payable from day 1 of the absence, but we have no further information on this, or when the legislation will be brought in. There is a lot of discussion, mainly from unions, about increasing sick pay. At the moment, no changes have been confirmed but this should be position should be closely monitored.
How should I deal with employees who have not been confirmed as suffering from coronavirus but may have been exposed to the disease?
If you do have a confirmed case of coronavirus within your organisation, the current guidance is that you should send home staff members who had worked closely with the infected employee, for a period of 14 days to prevent infection spreading. For staff that have no symptoms and have not been provided with a written notice by a doctor to self-isolate, there is no legal right to sick pay in these circumstances.
However, it would be good practice to do so, to prevent the employee trying to come into work and spreading infection. The government has advised that employers exercise their discretion in respect of seeking evidence from employees in these circumstances. As an alternative, it may be appropriate to ask people to work from home if they are not suffering from the illness, where this is possible.
What can I do if employees are not medically advised to self-isolate but I am concerned they may have been exposed to coronavirus?
Where employees have no current symptoms and if you would like to ask them to remain at home to avoid potential spread of the illness, it is likely that this will constitute a form of suspension, rather than sick leave. If the employees have no symptoms and are ready, able and willing to work, and are not required to self-isolate, but are doing so at your request, then payment of their wages will be required in full. This is unlikely to cause an issue if the employees concerned are able to work at home. However, it is likely to be more costly to the business where employees are not able to carry out their duties from home. However, if during this period the employees do fall ill with coronavirus, they would then be entitled to sick pay, at whatever rate they are entitled to.
For further guidance for employers dealing with issues around coronavirus, please contact Kate Shawcross on 01772 258321.