The World Health Organisation has declared that the Coronavirus is a public health emergency of international concern and the first reported cases have appeared in the UK. What steps should employers be taking in relation to their employees?
Travel to affected areas
Employers owe a duty of care to their employees to take reasonable steps to protect their health and safety and to provide a safe place and system of work. Employers should therefore not insist that an employee travels to an area affected by the virus for work related purposes. Government advice should be followed, particularly for those UK employees who have travelled to affected areas on business. These employees may also find it difficult to return to the UK and employers will have to have processes in place to assist employees who find themselves in this position.
Employees who have returned from affected areas
As mentioned above an employer owes a duty of care to employees, but does this extend to preventing employees from returning to work if they have returned from holiday or work in areas known to have experienced incidences of Coronavirus? The Government guidance suggests that people who have travelled from affected areas to the UK in the last 14 days should self-quarantine, stay indoors and avoid contact with other people as they would with the flu even if they do not have symptoms.
Where an employee has symptoms then an employer may be justified in suspending an employee as a precaution. If the employee is suspended then the employer will have to suspend them on full pay unless the contract gives the employer a right to suspend without pay for this reason. It could also instruct the employee to take a medical examination. If there is no contractual right to request an employee to take a medical examination then the employer may not have the right to do so. If there is a contractual right and the employee refuses to agree then the refusal may be treated as a disciplinary issue.
Where the employee does not have symptoms, the employer will need to follow health advice from the Government on what actions need to be taken in relation to those returning from an affected area . It may be that the employer can agree that the employee works from home during the quarantine period. If this is not possible, the decision whether to suspend the employee for that period must be taken.
Employees absent due to the virus
There may be different forms of absence during the period. Obviously employees who have the virus must be absent from work. This may also extend to those who are required to care for an immediate family member who has Coronavirus. In addition there may be employees who are in “quarantine” as a result of having been in contact with individuals or who have just returned from an affected area. Employees may also refuse to report to work for fear of being contaminated at work.
If an employee is absent with the symptoms, they will be entitled to sick leave and sick pay. In the UK statutory sick pay is payable to qualifying employees for up to 28 weeks in a three year period. An employer may also have contractual sick pay in place.
Employees who are at most at risk if exposed to the virus because they have particular health conditions will need to be considered. Employers are also under special duties in relation to pregnant employees and disabled workers. In relation to pregnant employees there is a duty on employers to conduct a risk assessment if working conditions could involve risk to a new or expectant mother or their baby. This may mean that the employer needs to consider alternative working conditions or hours and, if this is not possible, they may need to be suspended from work on maternity grounds. Some employees who have a disability may also be particularly at risk and therefore employers will be under a duty pursuant to the Equality Act 2010 to make reasonable adjustments.
If an employee is absent due to a fear of contracting the virus an employer must consider the risks and consider whether the employee is a vulnerable employee. Where there is no increased risk for the employee, the employer can request them to attend work. An employee who continues to be absent from work in these circumstances may be subject to disciplinary action for unauthorised absence.
Additional duties for other employees
If a large number of employees are absent, what is the duty on the employer to those employees who may need to work extra hours during the period? Whether an employer can require its employees to work extra hours will depend on the terms of the contract. Any contractual right needs to be exercised fairly and reasonably so as not to breach the implied term of trust and confidence. An employer should consult with its employees to ensure that they agree to any changes to their terms. An employer will also have to ensure that, if an employee does work additional hours, that does not breach the employee’s weekly working hours (unless he or she has entered into a voluntary opt out) or his or her daily or weekly rest periods.
Steps an employer should be taking
An employer should:
- Educate and provide guidance to employees on the symptoms of the virus and precautions which should be taken to prevent the spread of the virus;
- Provide a safe working environment for employees (for example, by ensuring access to hand sanitisers) and ensure thorough cleaning of offices and workplaces;
- Assess the risk of exposure;
- Encourage self-quarantine for those returning from affected areas;
- Provide advice to employees concerned; and
- Evaluate processes for response if the workplace is affected.
Edit: Note that on 3 March 2020 the government has clarified that if the NHS or a doctor advise an employee or worker to self isolate then they are entitled to statutory sick pay. The Acas guidance suggests that if an employer offers contractual sick pay it is good practice to provide this.
For the wider implications of the Coronavirus in the infrastructure, mining and commodities sector please see Coronavirus outbreak: the legal implications
For information on the FCA Statement on Covid-19 please see our blog here