Employer protection responsibilities
1. What responsibilities do we have towards our employees?
As an employer, you have a duty of care to your employees in relation to health and safety and indeed towards other individuals, including workers/contractors and visitors to your premises. UK health and safety legislation requires all employers to assess and review risks and to maintain an emergency procedures policy, should there be an event that creates a "serious and imminent danger to persons at work". Employers must communicate this policy to employees and provide appropriate training.
Employees also have a responsibility under the legislation to take reasonable care not to endanger themselves or anyone who may be affected by their actions at work.
2. How should we deal with pregnant employees or employees with asthma or other respiratory issues?
As already outlined, employers have a duty of care to their employees. This includes a duty to vulnerable employees who have asthma or other respiratory issues (or who are pregnant or have weakened immune systems for some other reason). You should ensure that appropriate safeguards are in place for these individuals, which may include requiring them to work remotely. Bear in mind that you have a duty to carry out a risk assessment for pregnant employees. If you cannot alter a pregnant employee's working conditions, or hours of work, or offer suitable alternative work, you must suspend the employee on full pay.
3. How do we deal with visitors to our premises?
Consider introducing a questionnaire to send in advance to any expected visitors to your premises, covering any travel to high-risk countries in the past 14 days and/or close contact with anyone who has done so. You should ask unexpected visitors to complete the same questionnaire, with a view to refusing entry to anyone who has recently returned from a high-risk country or had contact with someone who has done so.
As the situation evolves, government advice is likely to recommend that anyone with a cough or cold to stay at home for seven days. You may wish to consider pre-empting that advice and asking this in your questionnaire. If people indicate that they have a cough or cold, or have done so in the last seven days, it would be prudent not to admit them to your premises.
For data protection reasons, you should destroy the completed questionnaires once you have made a decision on whether or not to allow visitors access to your premises. Please get in touch with your usual Dentons contact or Virginia Allen for a template questionnaire.
4. We are putting together a COVID-19 policy: what should it cover?
A specific policy is not essential, but it can be helpful for managers and employees/workers to have a central source of information. A policy should cover:
- risk management/preventative measures for those at work, based on the latest NHS advice;
- the government's advice on self-quarantine and any wider restrictions you have put in place;
- a reminder of your rules and policies/procedures on homeworking and business continuity; and
- any guidance put in place for visitors, events and client meetings.
Given the situation is developing very quickly, and government advice is updated on a regular basis, consider providing regular updates to staff by email rather than preparing a static policy.
5. Is there a risk of employees bringing claims against the business?
If you do not take sufficient steps to safeguard employees' health (e.g. by not following the latest government guidance and/or failing to fulfil your duties in relation to employees' health and safety), there is a risk of an employee who contracts the virus during the course of their employment bringing a personal injury claim.
Failing to fulfil the particular duties you have towards a pregnant employee might lead to a claim of pregnancy discrimination.
You can minimise the risk of successful claims by monitoring and implementing government guidance and keeping your risk assessments up to date and under review.
6. Can we prevent employees from going on holiday to high-risk countries?
It is up to individual employees whether they choose to go ahead with pre-booked holiday plans. You should inform the employee of the risks of travelling and that he/she may have to self-quarantine on their return, depending on their destination. If working from home is not possible, you may consider asking the employee to use more of his/her holiday entitlement or take unpaid leave for the time he/she is in self-quarantine. If you find out that an employee is deliberately travelling to a high-risk area so that he/she can make use of additional time away from the office, you may wish to treat this as a disciplinary matter.
You could choose to turn down future holiday requests where you know an employee plans to travel to a high-risk country, but this may cause employee relations issues. In large organisations, it would be difficult to apply such a policy consistently, which may lead to claims of constructive dismissal or discrimination. Instead, ensure employees are aware of the government guidance on high-risk countries.
7. How should we deal with international travel for work?
The government has made it clear that all non-essential travel to high-risk countries should be cancelled. In terms of international travel to other countries, you should carry out a risk assessment to help you determine how to proceed.
Pay for employees who are in self-quarantine or unable to perform their duties
8. If employees have to self-quarantine for 14 days, do we have to pay them? Are they entitled to statutory sick pay?
The government announced in the budget statement that statutory sick pay (SSP) should be paid to all those who choose to self-isolate, even if they do not have symptoms. This will be relevant for those who cannot work from home during self-quarantine. See question 11 for possible alternatives. Strictly speaking, evidence of sickness is required after seven days' absence. However, the government guidance strongly suggests that employers are lenient about this where a medical professional has instructed an individual to self-quarantine.
The definition of "employee" which applies in the relevant regulations relating to SSP is much wider than in some contexts, so workers will also qualify if their earnings are liable for class 1 National Insurance contributions.
9. Has the government introduced any special measures?
The government is introducing emergency legislation so that employees/workers eligible for SSP will be entitled to be paid from day one of their absence/self-quarantine, rather than employers paying SSP only from day four under the normal rules.
In each part of the UK, public authorities have the power to detain individuals who have the virus, or are suspected/at risk of having the virus, and restrict their activities.
The government also announced in the budget statement that it will reimburse the cost of any SSP small employers (those with less than 250 employees) pay to eligible employees for the first 14 days of sickness.
10. Do we have to pay employees if we decide to introduce our own rules on self-quarantine?
If your business decides to introduce rules on self-quarantine that go beyond the current government guidance, you should continue to pay employees who are otherwise able to work but staying at home on your instructions.
11. If an employee cannot carry out their role from home, are there alternatives to paying them sick pay?
If an individual is not actually ill, but has chosen to self-quarantine without medical advice to do so, he/she can work from home where possible. However, working from home will not be a viable option for every role. ACAS guidance on this issue suggests that employers should treat self-quarantine in the same way as sick leave, if it is not being done on medical advice, or at your instruction, but you are not obliged to do so. If possible, you may wish to consider assigning different responsibilities to the employee.
Alternatively, you may be able to agree with the employee that he/she takes holiday or unpaid leave for the time away from work. However, it is important to ensure that the steps you do take do not inadvertently encourage employees who may have COVID-19 to come into work (for example, if you will not otherwise pay them). You may be in breach of your health and safety obligations if your policy has that effect. Remember that there is also an employee relations angle to the decisions you make around pay for time away from work in these circumstances.
12. Should we make special allowances for an employee who cares for an elderly relative or lives with someone whose immune system is compromised e.g. due to cancer treatment?
Concerns around COVID-19 will be greater amongst this class of individuals because they have caring responsibilities for dependants and because of the risks involved if they pass COVID-19 on to the dependants they are looking after. While there is no binding obligation to make special allowances, you should seek to do so wherever possible. This could include allowing this class of employee to work from home or to take holiday or unpaid leave.
13. What if an employee has to care for a child because schools close?
If schools close, many employees with children may find it difficult or impossible to find adequate childcare. Depending on the age of the children, working from home may not be a practical solution to this problem. Employees are entitled to take reasonable unpaid time off work to care for a dependant where this is necessary because of an unexpected event. How long is reasonable will depend on the specific circumstances of the employee. The ACAS guidance suggests it may be reasonable for employees to take two days of dependant leave but any further time would have to be taken as holiday. Flexibility will be key – consider whether the employee could work outside normal working hours if he/she needs to look after their child/ren during working hours.
14. Can an employee refuse to come to work/travel for work because he/she is worried about COVID-19?
If an employee does not want to come into work because of genuine fears relating to COVID-19, you should take these seriously. ACAS guidance states that, where possible, you should allow the employee to work remotely or to take time off work as holiday or unpaid leave. You should also remind employees of any support systems already in place, such as an employee assistance programme.
If an employee unreasonably refuses to attend work, you may consider disciplinary action. Ensure you deal with similar cases consistently, as with any disciplinary matter, but take into account the particular individual's circumstances and reasons for refusing to attend.
Employees diagnosed with COVID-19
15. What do we do if someone displays symptoms while at work?
The government and ACAS have given detailed guidance on this. The first step is to keep the individual two metres away from everyone else and ensure that he/she does not touch anything. You/the individual should then contact NHS 111 outlining the symptoms and advising if he/she has returned from a high-risk country within the past 14 days.
16. Do we have to shut our offices/workplace if someone displays symptoms?
Closing your workplace is not recommended at this stage. Depending on the location of your workplace, you should contact Public Health England, Public Health Scotland or Public Health Wales for advice.
Employee data privacy
17. Should we tell the rest of the workforce if an employee is diagnosed with COVID-19?
You would not be obliged to inform the rest of your staff that a colleague has been diagnosed with the virus, but it would be good practice to do so for reasons of transparency. However, personal health information is special category data under GDPR, so you must take care to preserve the individual's privacy as much as possible and not to name them directly. In reality, employees will likely be able to identify the individual, so you should remind employees that they must not speak to the media and, in particular, should not name anyone who may have the virus. Please see our separate bulletin on "COVID-19: Data Protection Checklist" for a fuller analysis.
Adjustment to employment terms in the event of operational difficulties
18. What can we do if COVID-19 causes a downturn in work for our business or leads to supply chain issues?
If the situation worsens and you have to close your business for a time, or reduce usual output levels due to supply chain shortages or delays, you will still be obliged to pay employees. Check whether your contracts allow you to lay off staff temporarily (provide no work) or put them on short-time working (lay off for a number of working days each week or for a number of hours on a working day).
If there is a risk that you will need to close your workplace, or introduce a lay-off/short-time working, it is important you discuss this with employees as early as possible.
In industries where the effects of the virus, and the associated measures being taken by governments around the world, are particularly acute, such as the travel industry, you may need to consider reducing employees' pay and/or hours, bearing in mind that this will require the employees' agreement.
In particularly severe circumstances, where the outbreak is prolonged and/or has a significant impact on your business, it may be necessary to consider pay freezes, a recruitment freeze, restrictions on non-essential training and, ultimately, redundancies. In a redundancy situation, you would be obliged to inform and consult with employees in the usual way.