The current Coronavirus pandemic is seriously impacting on our daily lives across the globe and the workplace is no exception. There is understandable fear that Coronavirus or COVID-19 to give it its medical name, can be caught by being in close proximity to someone who has the virus, and that people could be infected on public transport, at public gatherings and of course in the workplace.
Such is the concern that the UK Government is recommending that anybody with a cough and a temperature should self-isolate themselves at home for a minimum period of seven days. The act of self-isolation means staying indoors with no contact with the outside world, keeping a distance from those you live with and to refrain from having physical contact with them and sleeping alone. This has in turn contributed to the stockpiling of certain food and cleansing products that we now hear about in the media.
It is a worrying time for all when witnessing what is happening across the globe for example in Italy and China and where here in the UK at the time of writing those who have tested positive with Coronavirus is approaching 800 with 11 deaths. It is thought that the true figure is much higher as many people have not been tested and may not realise that they have the disease.
It is a sad fact of life that the spread of Coronavirus is seriously impacting on the wider economy and individual businesses and that in turn is impacting on Employers and their staff who need to know the legal position if the workplace is closed down or if staff are forced to work from home.
It is hoped that this article and the following questions will highlight some of the most important workplace issues for both employers and their staff in the way that they try and deal with them and in formulating any short-term policies that they may need to implement.
If staff are sick as a result of Coronavirus or if they decide to self-isolate are they entitled to be paid?
The Chancellor of the Exchequer announced his week in his budget that small employers employing 250 employees or less will be reimbursed for the cost of statutory sick pay (SSP) which will now be payable from day 1 of sickness absence for a period of up to 14 days. The affected employee will not need a Doctor’s certificate and can simply call NHS helpline 111 and obtain an e-mail certification to qualify for SSP. It is hoped that most employers will come to an arrangement with their staff that they can work from home especially where work is office based, and so they will receive their full salary. These days, working from home is more manageable with skype and other technological methods of keeping in touch with staff and effective communications.
The difficulty however is where the business is client-facing and requires staff to be physically present such as in a retail environment where working from home is simply not possible. In these circumstances where staff are infected or are at threat of infecting, they can be sent home and are only entitled to SSP and not full pay unless there is a contractual entitlement. It can be a burden for employers in retail having an unproductive member of staff at home on full pay.
SSP is currently payable at the capped rate of £94.25 per week for up to 28 weeks and is rising to £95.85 from 6 April 2020. Many will argue that this is not enough to live on and if breadwinners are forced to self-isolate this in itself will create financial pressures.
If staff are unable to work from home and are forced to self-isolate and cannot afford to live on Statutory Sick Pay, are there any other alternatives?
The obvious solution would be to agree to pay the member of staff their full salary at least for an agreed period of time. However, it is recognised that some small businesses are not in a position to pay full rates of salary if staff are unproductive. The other options available would be for the employer to agree that some of the time be treated as annual leave so that the employee does not suffer a serious reduction in salary and family finances.
What can you do if a member of staff who has been infected insists on attending the workplace because they cannot afford to stay at home and self-isolate?
In this situation the employer can reasonably refuse to allow the employee to attend the workplace and in extreme circumstances can medically suspend them. Employers have a duty of care to all of their staff and must take all reasonable steps to ensure their health and safety in law. The risk of an infected member of staff insisting on attending work is a dilemma and it is clear that there will be a health and safety risk to other members of staff. The employer is entitled to medically suspend the employee and send them home if they are a health and safety risk to themselves and others. If the employee is unable to work from home then the downside for the employer is that they may have to pay full pay to the infected employee who is medically suspended for up to 26 weeks. This should only be implemented in exceptional circumstances and it is much better for the employee to be paid their full rate of pay for a short period or to work from home if they are well enough to do so. The right thing would be for the employee to seek medical advice with a period of authorised sickness.
What happens if a member of staff needs time off to care for a child where their school has closed down or to look after an elderly relative that cannot go out to shop as they are considered a high risk?
In this situation the employee is able to attend work and is not formally authorised to be absent on the grounds of sickness. If there is a need to take time off to deal with childcare or to look after elderly relatives then the employee in question can ask for time off for emergencies. There is legislation to cover these scenarios. However, there is no legal entitlement for the employee to receive any payment unless there is a contractual entitlement. The other option is to allow the employee to take time off as annual leave to ensure that the family finances are not placed under pressure, however there is no legal compulsion on the employer to agree to this. It is hoped that employers would be pragmatic in such circumstances and would agree to pay salary for at least a minimum period of time or to enable some work to be undertaken at home. This could create staff tensions where other members of the team have to cover the absent employee. To clarify there is no legal requirement for the employee to be paid if they need time off at short notice to make such provisions for care.
What if an employee cancels their annual leave because it involves travelling to a country or location that has high infection rates or where flights have been cancelled?
Employees might need to cancel their annual leave arrangements if their holiday plans have been cancelled. Requests to postpone annual leave arrangements should be granted by the employer wherever possible to avoid staff feeling pressurised into taking their annual leave with no holiday plans. This can be difficult for small businesses juggling staff holidays however flexibility is recommended as a temporary measure.
What are the employers responsibilities if they close the workplace temporarily to protect both staff, clients and third parties?
In the event that the employer is forced to shut down the workplace for a temporary period of time, then staff that are laid off or placed on short-time working are entitled to statutory Guarantee Payments. The entitlement is currently £29 for up to a maximum of five days at a maximum of £145.00 This increases to £30 per day from April 2020. Employers may have contractual Guarantee payment schemes. If the period of lay-off or short-time working lasts for four consecutive weeks or six weeks within a thirteen-week period then this will trigger redundancies.
The employee is unable to travel back to the UK due to travel bans and is stuck overseas
Employees in this situation should do their best to make reasonable attempts to return to work at the end of their holiday or business trip. If that is not possible due to travel restrictions then they might be able to work remotely depending on their responsibilities and the technology that they have available to them. Employers should keep in contact with these members of staff to discuss and monitor their situation and to determine whether they can travel home safely or at all. It may be that there is a contractual travel policy setting out payment entitlements to cater for these situations or there might be a practice of paying such staff members with a reasonable expectation that they will receive their pay. It would be reasonable for the employer to continue to pay their salary as they are stuck through no fault of their own. If this is not possible then consider extending the period of annual leave if there is sufficient allocation left and if working remotely is not possible.
What if the employee becomes sick whilst on holiday in an infected area?
If the employee falls sick as a result of contracting Coronavirus then they should continue to be paid either holiday pay or sick pay as normal. If the employee is able to obtain authorisation from NHS111 or from their GP then they will be entitled to SSP and will be able to defer any unused annual leave later into the holiday year.
What if the individual is self-employed or part of the Gig economy?
There is no entitled to Statutory Sick Pay (SSP) for the genuinely self-employed or those classed as self-employed freelancers working in the Gig economy. SSP is only payable to employees usually. However, agency workers and those on zero hours contracts might qualify for SSP depending on their level of earnings. The alternative for the genuinely self-employed is to contact the Department for Work and Pensions where they might be able to claim Universal Credit or Employment and Support Allowance (ESA) which will assist with living costs for those who cannot work because of a health condition. The Chancellor of the Exchequer in this week’s budget extended assistance for the self-employed to access these benefits.
Be aware of discriminatory practices in the workplace
It is unfortunate that we have become aware of specific groups of people being targeted in society for example because they appear to be Chinese and blamed by some for the spread of Coronavirus or because they wear masks in public. It is important for employers to clamp down on any discriminatory practices in the workplace which may involve altercations or staff apportioning blame to other sections of the workforce based on ethnicity, nationality or a perception of their nationality and ethnicity even if incorrect. Employers need to be aware that they are vicariously liable for the actions of their staff and that they could be at risk of exposure to a race discrimination claim if such conduct is allowed to persist or is not dealt with appropriately.
It is a great idea to provide training in this area and to communicate that this type of behaviour is unacceptable and could result in disciplinary action including summary dismissal.
Finally, as with all things communication is key. There are some practical measures that employers can implement to keep staff up to date and to reduce any concerns that they may have.
Keep staff up to date on all actions being taken to reduce the risk of exposure to Coronavirus in the workplace
Update staff emergency contact details.
Ensure that management know how to spot symptoms of Coronavirus and are clear on any processes to be followed for example home working and sickness absence.
Ensure there is plenty of hot water, soap and tissues and encourage staff to wash their hands regularly and to keep their work areas clean and sterilized.
Consider if travel outside the UK is necessary and whether alternative arrangements can be made instead of travelling.
Consider issuing protective face masks for staff working in vulnerable situations for example in areas of busy public footfall. It is appreciated that masks are in high demand and may not be currently available.
Issue posters educating staff on the importance of hygienic practices for example regular hand washing.
Clean regularly frequently touched communal areas such as kitchens, toilets, door handles and seats.
Make sure that anyone with symptoms or the appearance of symptoms does not come into work or that there is no contact with staff who have returned from a highly infected area such as China or Northern Italy and consider home working where at all possible.
If you have any concerns about Coronavirus and its impact on your business then contact Steven Eckett, Partner and Head of Employment on 020 7703 5034 or firstname.lastname@example.org
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