28 Feb 2020
From staff stuck abroad due to a travel ban, to those refusing to work despite not seeking medical advice, Miranda Hughes outlines practice advice to employers to develop their Coronavirus response strategy.
Coronavirus or COVID-19 is a new illness that can affect a person’s lungs and airways. Symptoms of coronavirus are a cough, high temperature and shortness of breath but having these symptoms does not necessarily mean a person has the illness. Equally, not having these symptoms does not necessarily mean a person does not have the virus.
Globally, more than 40 countries have now been infected by the Coronavirus and the spread of Coronavirus to Europe has increased recently, especially in northern Italy.
As this is a new virus, it is not currently known how it is spread. However, employers can send a communication to their employees advising them to take general steps prevent the spread of infection:
Unlike Australia and the US, the UK has yet to impose a travel ban on people entering the country. However, there may be UK employees stuck abroad in China and elsewhere due to restrictions on travel. For example, it has been reported that 700 people staying in a hotel in Tenerife will have to remain in isolation for 14 days after an Italian doctor staying there tested positive for the virus.
If an employee is able to continue working whilst abroad, for example if they were on a business trip, then they should be paid as normal. It may also be reasonable to pay employees who cannot work but were abroad for business and employers may have a travel policy that sets this out. If an employee was on holiday but is now unable to return employers will need to take a view, unless they have a policy on this. Employers may choose to offer a one-off payment or ask the employee to take time as holiday or unpaid leave.
Where an employee is unwell and has recently returned from an infected area they should seek medical advice. If the employee is not well enough to attend work then this should be treated as ordinary sick leave. Where they are told to self-isolate, this will prevent them from leaving their homes, including to attend a doctor’s surgery. Employers should therefore relax requirements for fit notes for absences for longer than 7 days until a time where the employee can leave self-isolation. Where company sick pay is dependent on receiving a fit note, employers may wish to be flexible in the circumstances.
For employees who are displaying mild symptoms, have stopped displaying symptoms or have not displayed symptoms at all there is no statutory right to sick pay and, depending on the terms of your policy, no contractual right as they are not technically unfit for work. Both the Health Secretary and Acas advise that it would be good practice to treat this as sick leave and pay this accordingly, especially if it would prevent employees attending work and possibly spreading infection. Ultimately it will be left to the discretion of employers, especially as it remains unclear whether an employee would receive a fit note for self-isolation. An employer could therefore treat this as sickness absence or offer a further period of paid or unpaid leave.
Employers can always offer the option to work from home and be paid as normal.
Employers have a duty to take steps that are reasonably necessary to ensure the health, safety and welfare of all employees. Employers may wish to put in place a policy requiring all employees to disclose if they have been abroad and where or if they suspect they may have been in contact with an infected individual. The Government publishes useful information with regards to returning travellers on a daily basis and employers should conduct any risk assessment in light of this. Risk of infection for other employees, customers or service users will be higher for older people, pregnant women and those with pre-existing medical conditions so this should be taken into account. If an employer does ask an employee to self-isolate, they should be given the option to work from home if possible and otherwise should receive full pay for having effectively been ‘suspended’.
Current government advice for recent travellers coming from specified areas tells individuals to contact NHS 111 or in Scotland to contact their GP during normal surgery hours. For some countries this is where the individual develops symptoms and for others, such as Iran or specific lockdown areas in northern Italy, this should be done even if the individual does not have symptoms. What this ultimately means is that employees should, as a matter of course, be seeking medical advice. Employers should encourage employees to follow government advice as soon as possible to ensure they are doing the right thing. If an employee refuses to do so but still does not attend work, this could result in disciplinary action.
If someone becomes unwell in the workplace and has not been to infected areas in the last 14 days, Public Health England’s advice is to proceed as normal. If they have been to an affected area, they should be moved to an area which is at least 2 meters away from other people and contact NHS 111 or 999 as required. Ideally they should be placed in a separate room and a window should be opened for ventilation whilst they wait for advice or medical assistance.
Some UK employers have taken a more proactive stance on coronavirus. US oil company Chevron reportedly closed its London office in the Canary Wharf area after two workers had displayed symptoms. Two other businesses that share the building also asked staff to stay away. However Public Health England does not recommend closing the workplace, even if there is a confirmed case of coronavirus. That being said, it is ultimately up to employers to make their own decisions on health and safety risks to ensure that they deliver the duty of care they owe to employees and others.
If an employee refuses to attend work due to fear of infection employers will likely want to take a common sense approach depending on the likelihood of infection and whether they are a high risk individual. Depending on the circumstances, employers may offer the employee to work from home or to take the time off as annual leave. However, if they are a low risk individual and there is no established risk of infection in the workplace, this may become a disciplinary issue if the employee still refuses to attend.
Employment law is a rapidly evolving and often complex area of the law. Specialist advice is therefore essential.
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