Covid-19: Guidance to Employers

The alarming escalation in the number of people being diagnosed worldwide as having contracted COVID-19 or Coronavirus raises a number of serious concerns for employers.

This guidance is intended to provide an overview of some of the issues arising from this outbreak. The note is intended for guidance only and is not an authoritative statement of the law. Employers should seek specific advice on individual circumstances and in each particular case.

Duty to Protect Health and Safety of Employees
It is crucial for a business to keep itself and employees informed about related health risks, including:
• Having a system or means to keep abreast of Government advice on current issues as it develops. This can be an internal system or one which has been established through a third party such as a risk management business.

Current NHS advice can be found at https://www.nhs.uk/conditions/corovirus-covid-19/

• Having reliable and effective systems for communicating with employees. The system should include contact data (email, work telephone, personal telephone and address) which is updated on a regular basis.

Fundamentally, in the current crisis, businesses must take steps to ensure that there is good hygiene in the workplace and that working practices do not impose undue risk to employees.

Actions should include:
• Reviewing systems of hygiene to ensure that they provide appropriate protection. Staff need to be encouraged to wash their hands regularly with soap, to carry and use tissues and sanitizing hand gel. Consideration should be given to providing training or communications to staff about why these practices are required;
• Increasing the cleaning of hard surfaces in the workplace, particularly phones and door handles;
• As and when a vaccine is produced, carrying out a cost/benefit analysis for offering injections to the workforce;
• Carrying out a risk assessment to identify any higher risk groups, such as those who have a high level of contact with each other or have pre-existing conditions which might render them more vulnerable to the virus.

Travel to High Risk Areas
The NHS website is regularly updated with details of high risk areas. Where employees travel to high risk areas (and particularly where the Government has advised against this travel) employees should only be asked to travel to these areas where it is unavoidable or absolutely necessary.

The employer must check whether:
• Their travel insurance will still provide cover for treatment and medical repatriation;
• Local care is available or suitable;
• Specialist travel protection from a third party is required or desirable.

Absenteeism
During the crisis, employers will face a conflict between the need to keep generally sick employees away from the workplace and the need to prevent unauthorised absence. However, in these circumstances, concerns about whether someone is a malingerer should give way to the very real need to prevent the spread of the disease. Workplaces where there is a culture of encouraging employees to struggle in when they feel sick will need to change their approach and a failure to do so could expose them to claims for breach of contract.

It is also possible that employers could benefit from insisting that those who are unwell stay away from work for reasons other than limiting the spread of the virus in the workplace. A well-advertised sickness policy of this kind might help employers reassure healthy but nonetheless worried staff that the workplace is relatively safe.

During a crisis, employee safety must be held by the employer as a priority, be that safety during the commute to work, business travel carried out in the course of work or even accessing a working site. This should be monitored on an ongoing basis during the crisis and kept under continual review.

The hardest thing to manage is likely to be employee fear, particularly if there is public consensus that staying at home is safest. Employees should be required to attend work as normal, unless there is a particular risk posed in the workplace or in getting to and from the workplace. Employees should be encouraged to follow Government advice in relation to self-imposed quarantine, particularly where they have recently returned from a high risk area. Employers should take their cue from the Government and generally implement their common sense. It would be good practice for employers to consider requests to work from home during the crisis and also to consider flexibility to commute outside rush hour particularly for those employees who are pregnant or who have weakened immune systems.

Employers have a duty to protect the health and safety of employees. During the crisis employers will face a conflict between the need to keep genuinely sick employees away from the workplace and the need to prevent unauthorised absence.

If there is an identified risk that an employee may have been exposed to COVID-19 then it is understandable, in the light of an employer’s duty to protect the health and safety of other employees, that the employer would wish to keep that employee away from the workplace until the risk has passed. Ultimately, however, the employer may regard the risk of allowing the employee to remain at work as outweighing any employment law risk which could exist in suspending them.

In the absence of an expressed provision in the contract of employment permitting an employer to suspend an employee where they suspect the employee poses a risk to other employees, doing so is likely to be a breach of the contract of employment. On any view, any such suspension would have to be on full pay pending a diagnosis of infection or the employee falling within one of the categories of persons specified by the Government as requiring to undergo a period of self-isolation. In the latter scenario it is arguable that the employee has a deemed incapacity and should refrain from working or alternatively stay away from work having required to do so with a view to the prevention of infectious diseases. In those circumstances they would be entitled to Statutory Sick Pay.

It is to be hoped that in most instances good sense will prevail and that where there is a risk, however minimal of cross-infection, employees will be persuaded to remain at home. This will be made all the easier if the employer is prepared to continue payment of salary or wages pending a medical diagnosis.

A similar situation arises where employees are quarantined abroad and unable to return to work. In such circumstances it is of course open to the employer to continue to pay the employee. It is likely that employees will argue that the situation was out with their control and there will be an expectation that they will receive full pay. It is however open in those circumstances for the employer to treat the absence as a deemed incapacity and to pay only Statutory Sick Pay.

Given the restrictions on attending GP Practices and medical facilities where someone suspects they may have contracted the virus, there will inevitably be delays in reproduction of doctor’s fit notes. Employers are reminded that they are entitled to rely upon reasonable evidence of incapacity and this does not require to take the form of a doctor’s fit note. It is open to employers in these circumstances to extend the use of self-certification.

The ACAS Guidance on how to address issues arising from the virus can be viewed at: http://www.acas.org.uk/coronavirus

For detailed advice in relation to any particular case, please contact a member of the Wright, Johnston & Mackenzie Employment Team: Martin Stephen (mss@wjm.co.uk), Andrew Wilson (ajpw@wjm.co.uk), Liam Entwistle (lae@wjm.co.uk), John Grant (jzg@wjm.co.uk).