The coronavirus epidemic: employment issues


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The news is currently full of reports about coronavirus.  As it's highly unlikely that the threat of coronavirus is going to disappear any time soon employers will experience various challenges when it comes to managing the situation.  There still isn't much concrete information out there: people can possibly get the virus twice and the incubation period which was initially thought to be up to 14 days may well be longer, confusion currently reigns.

So what can be done when an epidemic such as the coronavirus takes hold?

Protecting health and safety

Employers are under a duty to protect the health and safety of their employees.  Acas has published advice which recommends simple steps for employers, including:

  • Keeping everyone updated on actions being taken to reduce risks of exposure.
  • Making sure that everyone's contact numbers and emergency contact details are up to date.
  • Making sure that managers know how to spot symptoms of coronavirus and are clear on any relevant procedures for sickness reporting sick pay, and if an employee develops the virus.
  • Encourage good hygiene by providing clean places to wash hands with hot water and soap, and giving out hand sanitisers and tissues.
  • Considering if protective face masks might help for particularly vulnerable situations.
  • Considering if any travel planned to affected areas is essential.

In order to keep employees abreast of any developments, employers should also keep on top of government advice, and have effective systems for communicating with employees.

Absenteeism

Coronavirus is likely to result in increased staff absence, due to actual sickness or the need to self-isolate due to contact with people who may have been exposed to the virus.

Employers who encourage employees to come to work when they are feeling ill could potentially face claims for breach of contract.

What happens if an employee who has potentially been exposed to the virus insists on coming to work?  Will it be possible to suspend them?  There's an argument that the employee should remain at home and remain there until the risk has passed, so that the employer can comply with its duty to protect health and safety. It is unlikely to be in breach of the employer's implied duty of trust and confidence to require an employee to stay at home, provided that it continues to pay the employee wages.  It will be very important to ensure that the matter is dealt with appropriately and sensitively, and that there are reasonable and non-discriminatory grounds for concern.  If an employee refuses to comply with medical precaution and is endangering others by ignoring potential travel restrictions and returning to work, this is potentially gross misconduct.

An alternative to suspension would be to ask the employee to work from home (if possible) for a period of time.

Should an employee who self-isolates be paid?

Where an employee is willing and able to perform work in accordance with their contract of employment there is an obligation on the employer to pay wages, unless there is a contractual right not to.  When a suspension has occurred, an employer will have to continue to pay the employee in full.

If an employee self-isolates after travel to a high risk coronavirus area the ideal solution would be for them to work from home, but this may not be possible.  If they are displaying no signs of the virus they will not be entitled to claim sick pay, however it is good practice to treat the time away from work as sick leave, or to agree for the time to be taken as holiday as otherwise there's a risk that the employee will come to work because they want to get paid.

There is an argument for paying the employee their full pay entitlement as, if an employer would suspend the employee anyway on health and safety grounds they would be entitled to full pay. In order to avoid employees abusing this, employers can ask for proof of travel before paying the employee for time away from work.

Another potential issue is employees claiming that they have coronavirus symptoms and going off on sick leave. To counter this, employers can ask for evidence of positive testing for the virus before allowing the employee to claim their entitlement to sick pay.  Businesses should consider amending their policies, to make it clear faking symptoms will lead to disciplinary action.

What if an employee doesn't want to come into work?

Given the scale of the press attention at the moment it won't come as a surprise if some employees decide they don't want to go to work for fear of catching coronavirus.  The Acas advice recommends that, in the first instance, an employer should listen to any concerns that staff may have.

Employers should try to resolve any genuine concerns. Possible solutions include allowing employees to work from home or flexibility to commute outside rush hour. This could be particularly useful for employees who are pregnant or who have weakened immune systems.

If an employee is still concerned and still does not want to come into work, then the employee could arrange to take the time off as holiday or unpaid leave.  However, an employer does not have to agree to this.

The Acas advice states that if an employee refuses to attend work this refusal could result in disciplinary action.  If an employer has tried to allay an employee's concerns and offered practical solutions which the employee has turned down, it is likely that any subsequent dismissal on grounds of misconduct would be fair.

What if the workplace needs to be closed?

Employers should plan in case they need to close the workplace temporarily.  If this is the case the employer will need to ensure that staff can work effectively from home, and that proper communication channels are put in place.

Employers should consider amending contracts to give them the power to lay-off employees or put them on short-time working to cope with the economic impact of coronavirus. This way the employer will not have to provide the employees with work or pay while continuing to retain them as employees if the business needs to close for a time.  An alternative is providing short-time working where employees are provided with less work and less pay for a period of time.  These two measures will enable employers to avoid redundancies.  It will be important to communicate any closure or short-time working arrangement to staff as early as possible and, if the business is closed, maintain contact with them throughout the closure.

Time off to care for dependents

With stories of schools temporarily shutting down, employers may be receiving more requests from employees for time off to care for dependents. Employees are entitled to a "reasonable amount of time off" to look after dependents.  This will depend on the nature of the incident and the employee's personal circumstances but will generally be no more than one or two days.  The time is unpaid.

If dependants become seriously ill, employers will probably be expected to be more flexible when it comes to granting time off.  Employers and employees may come into conflict over issues such as length of leave and whether such leave should be paid or unpaid.  Employers will have to exercise their discretion in such circumstances and may be vulnerable to allegations of discrimination or breach of trust and confidence.

Personal travel

While employers may decide to ban work-related travel to high risk areas it's a different matter with personal travel.  Employees may decide to travel to an area listed by the government as high risk.

Before an employer imposes travel restrictions it should consider the risks of discrimination claims.  If personal travel is prohibited to certain countries this may discriminate against staff of a particular ethnic origin.  If the employer's reasons for prohibiting travel are legitimate and it acts proportionately in imposing such a ban it will be likely to have a defence to a possible race discrimination claim. However, the personal reasons of the employee wishing to travel could well be relevant, e.g. to see an ailing relative.  It may be more proportionate to require the employee to self-quarantine at home once they're back rather than banning them outright from going.

Uncertain times

In this evolving situation it's important that employers keep on top of the latest government advice on coronavirus and adapt it to the practicalities of running their workplace.  Flexibility, understanding the concerns of employees and acting to alleviate them through the implementation of sensible measures are  key. England's Chief Medical Officer said that the transmission of the virus between people in the UK was "just a matter of time", so this will be dynamic and evolving.

Trowers' Top tips

Here are a few tips to help you deal with the coronavirus:

  • Encourage good staff hygiene.
  • Treat staff concerns sensitively and consider flexible working arrangements if necessary.
  • Publish FAQs for staff.
  • Be prepared to deal with time off work requests to care for dependents.
  • Keep on top of government guidance at all times.
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