COVID-19: Government publishes new guidance for employers

Published 2 March 2020

Updated 5 March 2020

Our DAC Beachcroft Employment experts address some key concerns for employers in relation to COVID-19.

Can I ask staff to remain at home following travel to or via a particular country?

Employers have a duty to protect the health and safety of their employees and to provide a safe place to work. It is important to monitor and highlight to employees the Government guidance on “lockdown” countries and to take a risk based and proportionate response to those who have travelled to those countries or have been in close contact with those who have been so. In order to protect the rest of your workforce, many employers may wish to go beyond the Government guidance and ask those returning from the other affected areas to remain at home too. Other than in exceptional cases, and as long as it is paid and not done on a discriminatory basis, this is unlikely to count as a breach of the employee’s contract.

What if an employee refuses to attend the workplace because of fears of infection?

You should offer reassurance and advise them where to find further support. It may be possible to allow employees who wish to do so to work from home or to take holiday or unpaid leave. In particular, more flexibility may be required for employees who are pregnant or otherwise at high risk for medical reasons. However, you should reserve the right to require attendance at work on short notice, making it clear that disciplinary action could be taken if a refusal to attend work is unreasonable.

What pay are employees entitled to?

This depends on a number of factors such as whether the person is displaying symptoms (in which case absence can be treated as sick leave) or whether they are fit to work but are being asked to stay at home because of Government medical advice or preference of the business. If an employee can work from home, they should be paid as normal but the situation becomes more complicated where they cannot perform their usual role at home. The Government advice is that employees staying at home because of medical advice should receive any statutory sick pay (SSP) due to them. The Government announced on 4 March that emergency measures were being taken so that SSP will now be due from the first day off work, rather than the fourth day (effectively removing the 3 day waiting period for SSP). The concern is that if an employee receives no sick pay, they may try to come into work or work elsewhere which poses a risk to the spread of the virus. If s/he turns up for work and is turned away s/he can say s/he has fulfilled his/her part of the wage/work bargain so should be paid. Acas have also advised that if the employer offers contractual sick pay it is good practice to pay this. Employers therefore need to consider the wider health and employee relations implications of what to pay in these circumstances, particularly in view of the Government’s advice.

Employers will need to keep their approach to payment under review in case the situation escalates.

What else should I consider?

Minimise disease transmission – Consider restricting non-essential travel to high risk areas and  increase the use of video conferencing to avoid face to face contact. Any travel to overseas meetings or conferences should be subject to a full risk assessment. Further consideration should be given to restricting visitors such as suppliers to the workplace who have recently travelled to countries who have experienced a virus outbreak.

In the workplace consider installing hygiene facilities such as hand sanitisers and enhancing cleaning services. Educate staff on symptoms to look for, and remind them about frequent hand washing and maintaining good cough and sneeze etiquette.

Be aware of discrimination - There have been reports of racial abuse in connection with the outbreak. Remind people about their obligations to treat people with respect and your Bullying and Harassment policy. Any policy not to attend work should be related to potential exposure to the virus and should apply to everyone regardless of nationality or ethnicity.

Develop a contingency plan - The plan should include strategies which deal with possible scenarios such as a reduction in business or staff shortages. Employers may have to consider options such as redundancies, or temporary solutions such as lay off or voluntary leave where employees could opt to take paid or unpaid leave.

For more information or advice, please contact Louise Bloomfield in our Employment team.