The coronavirus outbreak throws up numerous employment law issues, including questions about travel, health and safety concerns, pay and discrimination risks. From staff who refuse to attend work despite being well, to those who refuse to stay home when sick, what do employers need to know?
Health and Safety
Employers have a duty to take steps that are reasonably necessary to ensure the health, safety and welfare of all their employees, including those who are particularly at risk for any reason. Employees also have a duty to take reasonable care of their own health and safety and that of people they work with. Employees must cooperate with their employer to enable the company to comply with its duties under health and safety legislation. Employees who refuse to cooperate, or who recklessly risk their own health or that of colleagues or customers, could face disciplinary action.
General advice and guidance: Employers should take simple precautions to protect their staff including:
- Limit work trips abroad. Use telephone or videoconferencing where possible instead.
- Educate staff without causing panic. For example, send emails or display posters outlining the current situation and any government advice (see our advice for employees document).
- Provide tissues and hand-sanitiser and encourage their regular use. In particular, encourage staff to wash their hands or use hand-sanitiser on arriving in the building after using public transport and after coughing or sneezing.
- Consider displaying posters on “cough etiquette”, hand and respiratory hygiene and safe food practices.
- Regularly clean frequently touched communal areas, including door handles, kitchens, toilets, showers, and hot desk keyboards, phones and desks.
- Ensure that anyone with coronavirus symptoms (cough, sore throat, fever, breathing difficulties, chest pain) who has recently travelled back from China or other affected countries or has had contact with someone who has (or with someone infected with the virus) does not attend work. Advise them to call the NHS on 111 for further advice.
- Consider allowing high-risk individuals to work from home, particularly if coronavirus cases are confirmed near the workplace.
What about paying employees?
- The workplace’s usual sick leave and pay entitlements apply if someone has coronavirus. Employees should let their employer know as soon as possible if they’re not able to go to work.
- The employer might need to make allowances if their workplace sickness policy requires evidence from the employee. For example, the employee might not be able to get a sick note (‘fit note’) if they’ve been told to self-isolate for 14 days.
- If someone is not sick but cannot work because they’re in self-isolation or quarantine there is no legal (‘statutory’) right to pay if someone is not sick but cannot work, however it is good practice for their employer to treat it as sick leave and follow their usual sick pay policy or agree for the time to be taken as holiday. Otherwise there’s a risk the employee will come to work because they want to get paid. They could then spread the virus, if they have it. The employee must tell their employer as soon as possible if they cannot work.
- If an employee is not sick but their employer tells them not to come to work, they should get their usual pay. For example, if someone has returned from China or another affected area and their employer asks them not to come in.
- Employees are entitled to time off work to help someone who depends on them (a ‘dependant’) in an unexpected event or emergency. This would apply to situations to do with coronavirus. For example: if they have children they need to look after or arrange childcare for because their school has closed, to help their child or another dependant if they’re sick, or need to go into isolation or hospital. There is no statutory right to pay for this time off, but some employers might offer pay depending on the contract or workplace policy. The amount of time off an employee takes to look after someone must be reasonable for the situation. For example, they might take 2 days off to start with, and if more time is needed, they can book holiday.
Employees refusing to attend work
What is the position if the employer thinks it is safe to attend work, but an employee is reluctant to do so because of fears of infection?
Employers should assess the risk regularly, consulting government websites for updates. They should also consider their staffing requirements and how many people they need in the workplace. It may be possible to allow employees who wish to do so to work from home or to take holiday.
Employers should, however, be mindful that they might need to require individuals to attend if other people fall sick and there is insufficient cover. If you do permit remote working or holiday, you should reserve the right to require workplace attendance on short notice, making it clear that disciplinary action could be taken if a refusal to attend work is unreasonable.
Before any disciplinary action is commenced, the situation should be discussed with the individual, because it may be possible to allay their concerns in some way. For example, if their real fear is the risk of infection on public transport, it might be possible to adjust their hours to enable them to travel outside rush hour.
If the individual refusing to come into work is pregnant or otherwise at high risk, you should tread carefully and may have to be more flexible. If someone has genuine fears about attending work, the stress of being required to do so or alternatively face disciplinary action may itself adversely affect their health.
Refusing to allow employees to stay at home, or disciplining them for not attending work, could potentially lead to legal claims. For example, an employee might try to claim constructive unfair dismissal if there is a genuine health and safety risk from being required to attend work. However, provided employers do not act unreasonably and employees are not placed at undue risk, such claims would be unlikely to succeed.
Lay off / short time working contractual clause
If the business needs to close for a period of time or is unable to operate as usual, then there is the potential for employees to be “laid off” for a short period of time without pay. In order to do this, there needs to be a lay off / short time working clause in the employment contract allowing the employer to do so. If this is an avenue you would like to explore please contact Harwood HR for further advice
The situation is likely to change rapidly, and the advice given regarding employment and the Coronavirus is likely to change: Reliable sources of information to monitor include: