At the end of January 2020, the Government raised the UK risk level in respect of the current outbreak of COVID-19 (Coronavirus) from low to moderate. Since then the Government has escalated planning and preparation in case of a more widespread outbreak and incidences of the virus have continued to increase. More recently, the World Health Organization (WHO) upgraded the global risk of the Coronavirus outbreak to "very high" - its top level of risk assessment.
There are currently no areas in the UK particularly affected by the virus to which travel is prevented or restricted. To seek to prevent the spread of COVID-19, Public Health England currently recommends that general cold and flu precautions are followed and that those who have recently travelled to particularly affected areas should “self-isolate”.
Employers will need to keep up to date with and follow Government and related advice and to communicate their approach to staff as it develops. Employers will also need to bear in mind their legal duties to protect the health and safety of staff, to avoid unlawful discrimination, to make reasonable adjustments for disabled employees and to avoid any breach of the terms of employees’ employment contracts, and in particular the implied duty of mutual trust and confidence. Employees should also be reminded of their duty to protect their own health and safety (by, for example, following hygiene advice or instructions not to attend the office).
Sources of information
The following sources of advice may be useful:
Travel and self-isolation
The areas currently most affected by COVID-19 have been designated Category 1 and 2 by the Government. Best practice in relation to international travel is as follows:
- All non-essential travel to the Category 1 affected areas - PRC, and specifically Hubei Province, Iran, the specific lockdown areas of Northern Italy designated by the Governments of Italy and South Korea - should be discouraged. Any essential travel to these areas must be cleared with the employer before booking is confirmed.
- Any employee returning from travel anywhere in Category 1 affected areas in the past 14 days or who has any reason to believe they may have been exposed to COVID-19 is advised to self-isolate for 14 days to mitigate the risks, even if they are not showing symptoms.
- Any employees returning from travel anywhere in Category 2 affected areas - Cambodia, Hong Kong, Northern Italy other than the Category 1 affected areas, Japan, Laos, Macau, Malaysia, Myanmar, Singapore, Taiwan, Thailand and Vietnam - in the past 14 days should self-isolate if they have any symptoms. It would be prudent to require any employee returning from one of these areas to contact the employer in any event before returning to work so that the employer can assess the potential risks, and potentially ask the employee to self-isolate for 14 days to mitigate the risks.
- Employers may wish to discourage leisure travel to affected areas, and adopt the approach described above where an individual returns from leisure travel to one of these areas.
Practical measures help prevent employees catching and spreading COVID-19
Whilst many employers will have taken these steps already, practical steps employers will wish to continue to implement include:
- increasing cleaning of high-traffic common areas, i.e. toilets, lift call buttons, lobby door handles.
- displaying posters advising of hand washing best practice and advising of health tips to do with COVID-19.
- providing additional hand sanitisers throughout the office.
- providing boxes of tissues around the office and in conference rooms.
- sending regular update emails explaining the position and encouraging employees to continue to monitor their own health, to wash their hands frequently using soap and water or an alcohol-based hand sanitiser, to try to avoid touching their eyes, nose and mouth and always wash their hands before eating.
- considering suspending or adjusting absence policies in relation to COVID-19-related absence if the employer wishes to encourage sick or at risk employees to stay at home to protect other staff and the business.
- asking visitors to the employer’s premises to self-certify with regard to their prior travel and for larger events not to attend if they have recently returned from the relevant areas.
Consideration will also need to be given to the potential need to conduct risk assessments for those who are at particular risk of contracting the virus or developing more severe symptoms as described below.
Sick pay entitlements
Employers need to distinguish between various different scenarios when determining their approach to sick pay:
Employee has COVID-19
An employee who is off sick with COVID-19 symptoms would be entitled to statutory sick pay (SSP) and, depending on the employer’s arrangements, contractual sick pay.
Employee is advised or required to self-isolate
In accordance with the Health Protection (Coronavirus) Regulations 2020, Coronavirus is a relevant infection or contamination for the purposes of SSP. If a worker receives a written notice from a GP or NHS 111 that the individual should self-isolate, then he or she will be entitled to SSP. The Government has now announced that SSP will be payable from the first rather than the fourth day of absence.
Individual employers’ sick pay schemes are unlikely to cover employees who are absent from work but not actually sick. However, it is likely to be appropriate and advisable for employers to pay employees their normal pay if self-isolation is genuinely appropriate or required by the employer and the employee remains fit for and willing to work. If an employee is not sick but is sent home or told not to come to work by the employer - for example, because they are displaying potential symptoms of COVID-19 or because they have travelled to affected areas - it is likely to be appropriate for the employee to continue to receive his or her normal pay. Such employees could be encouraged to work from home if this is practical.
Employee needs to take time off to look after family members
Employees may need to take time off to look after family members - for example, because their child’s school has closed because of COVID-19 or if an elderly relative is sick with the virus. In such circumstances, an employee has the statutory right to take dependants leave (under section 57A Employment Rights Act 1996). However, there is no statutory right to be paid for taking dependants leave, and the leave is intended to cover the time needed to deal with the initial problem and make alternative arrangements. Such situations may need to be dealt with on a case-by-case basis.
An employee becomes ill with suspected COVID-19 at work
The current advice from Public Health England is that an individual who has travelled to the specified areas in the last 14 days and is unwell should be removed to an area which is at least two metres away from other people and preferably behind a closed door. They should call NHS 111 using their own mobile phone. Current advice is that in these circumstances there is no need to close the workplace and send staff home. If an employee with COVID-19 has been in the office, the local PHE Health Protection team would advise on next steps.
An employee refuses to self-isolate
If an employee refuses to self-isolate when reasonably requested to do so this could become a disciplinary matter on the basis that it constitutes failure to comply with a reasonable management instruction - not least in view of the fact that under the Health and Safety at Work Act 1974 employees are under a duty to take care not only of their own health and safety but also the health and safety of others at work.
An employee voluntarily self-isolates or is worried about catching COVID-19 at work and wants to stay at home
As things currently stand, the advice from the NHS is that most people can continue to attend work. Accordingly, unless an employee has been exposed to the virus, or has recently travelled to or from one of the affected areas, or has a particular health issue, then the individual has no reason to stay at home.
Nonetheless, if an employee does not wish to attend work and is neither sick nor in one of the groups advised to self-isolate, the employer should listen carefully to the employee’s concerns. Employers should consider the needs of any employees with a particular cause for concern such as those with compromised immunity, those with an underlying condition (such as a cardiovascular disease, respiratory condition or diabetes) and any others identified by the WHO as at a higher risk of developing severe COVID-19. For example, the WHO has advised that people over the age of 60 or who have a higher risk of developing severe COVID-19 should try to avoid crowded areas or places where they may interact with people who are sick. In extreme cases, stress or anxiety about COVID-19 may in itself amount to an illness or disability which the employer will need to consider. In all such cases, the employer will need to be mindful of its duties, for example, to workers who are disabled for the purposes of the Equality Act 2010 in respect of whom it may be appropriate to consider reasonable adjustments. The situation of an employee who self-isolates without being required to do so by the employer or in accordance with specific medical advice could constitute unauthorised absence but nonetheless the employer will wish to consider all the circumstances carefully in determining how to respond.
Likewise, from a health and safety perspective, the employer should also take seriously any complaint by an employee that his or her personal health and safety is being put at serious risk by the employer failing to comply with its obligations arising from the COVID-19 outbreak.
In any event, an employer should therefore consider any requests to work from home carefully in the light of individual employees’ circumstances, and the practicalities of a number of employees working from home not least in view of the IT, health and safety and confidentiality issues which home working can present. Employers should also be mindful that formal flexible working requests may be made by staff in which case the relevant statutory procedures need to be followed.
There have already been a few situations where employers have decided to close their workplaces to avoid the spread of infection where one or more staff members have potentially contracted the virus or been at risk – even if this has been only for as short period while the situation is assessed. Employers need to ensure that they are able to contact employees to communicate a closure of an office or other workplace and may need to remind staff to take their laptops home each day in case of an unexpected closure on short notice.
Employers will need to be alive to the possibility of allegations of harassment or bullying especially in relation to staff who have recently returned from at risk areas or more generally and to ensure that any issues of this sort are handled promptly.
Employers should of course review and adapt their policies and approach as the situation develops and ensure clear and prompt communication with staff.