By Bethan Carney and Taya Sayekaya. Firm: Lewis Silkin LLP
The coronavirus outbreak throws up numerous employment law issues, including questions about travel, health and safety concerns and discrimination claim 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?
About the coronavirus
Coronaviruses are a family of viruses that can be found in animals and humans. A new strain of coronavirus that had not been previously identified in humans – now officially called 2019-nCoV – was reported in Wuhan, in the Hubei province of China, in December 2019. The World Health Organisation has declared the latest coronavirus outbreak a ‘public health emergency of international concern’.
In China, more than 20,000 cases had been confirmed by 4 February and 425 people had died. According to the BBC news, there are additional cases confirmed in at least 20 other countries. The situation is changing rapidly, as the number of reported cases increases and further countries confirm cases.
The UK risk level is designated ‘moderate’, according to the UK’s Chief Medical Officers, but depending on circumstances and the spread of the disease this may get higher. The level is set for the purposes of enabling the government to plan and prepare in case of a more widespread outbreak. The risk to individuals of infection currently remains low: there have been only two cases diagnosed in the UK so far.
The coronavirus causes respiratory illness in humans, usually resulting in mild symptoms including runny nose, sore throat, cough and fever. Some individuals experience more severe symptoms and it can lead to pneumonia and breathing difficulties and, in rare cases, death. More susceptible individuals at greater risk of becoming seriously ill include older people, pregnant women and those with pre-existing medical conditions.
The coronavirus outbreak could cause various issues for employers. This article sets out some of the things employers should be thinking about now.
Travel bans and employees stuck abroad
China has travel restrictions in place to try to prevent the spread of the virus within the country, including suspension of travel within certain districts including Wuhan. Several countries have imposed restrictions on travelling to and from China, with some having closed their borders to Chinese nationals.
The UK government airlifted a group of UK citizens from Wuhan on 30 January, but does not have plans to evacuate all remaining UK nationals from China. Those who were on the flight have been placed in quarantine for two weeks (the incubation period of the disease). Some UK citizens are still stuck in Wuhan or elsewhere in China and not able to return.
Employees in China should make reasonable attempts to return to work at the end of their holiday or business trip. If that is not possible because of travel restrictions, they may be able to do some work remotely depending upon their responsibilities and the circumstances in which they find themselves. Managers should contact any employees stuck in China to discuss their situation and whether they can safely travel home. If appropriate, they can also discuss the possibility of remote working.
Normally, employees are entitled to be paid only when they are working or on authorised leave. If they are on holiday or fall sick while abroad, they should continue to be paid holiday pay or sick pay as normal. If they are doing work for you while abroad, you should continue paying them their salary.
If they employees are expected back at work but cannot return or work remotely, the situation becomes more complicated. They may have a contractual entitlement to pay if you have a travel policy which sets out such an entitlement, or if you have a practice of continuing to pay people in those circumstances such that they would have a reasonable expectation of being paid. In any event, if they have been abroad for work and have got stuck through no fault of their own, it would be reasonable to continue to pay their salary as normal until they return (or could reasonably do so).
If employees have been unable to return from holiday, you could choose to pay them (on a one-off discretionary basis), or ask them to take the time as annual leave or unpaid leave. You should treat employees consistently or you may risk discrimination claims.
Employees who have recently returned from China
Government advice for travellers from China is that individuals who have travelled from Wuhan or Hubai province to the UK in the last 14 days should self-quarantine even if they do not have any symptoms. Those who have travelled from elsewhere in China (but not Macao or Hong Kong) in the last 14 days and develop symptoms of a cough, fever or shortness of breath should also stay indoors and avoid contact with others as much as possible. All these individuals should call the NHS to inform them of their travel.
If you have employees to whom this applies, you should ask them not to come to work until after the incubation period is over and any symptoms have completely gone.
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. They must cooperate with their employer to enable it 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 be disciplined.
Employers should take simple precautions to protect their staff’s health and safety:
- Limit work trips to China. The UK government advises against all travel to Hubei Province during the coronavirus outbreak. It advises against all but essential travel to the rest of mainland China (not including Hong Kong and Macao). 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.
- 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 hotdesk keyboards, phones and desks.
- Ensure that anyone with coronavirus symptoms (cough, sore throat, fever, breathing difficulties, chest pain) does not come into work. If they have recently travelled back from China or have had contact with someone who has (or with someone infected with the virus), they should see a doctor and get a diagnosis. They should not return to work until all symptoms have gone.
- Keep the situation and government guidance review. If the situation worsens, employers may have to take additional measures such as minimising all work-related travel.
- Consider allowing high-risk individuals to work from home, particularly if there coronavirus cases are confirmed near the workplace.
Although there remains some uncertainty, those at most risk of becoming seriously ill if they catch the coronavirus appear to include older people, pregnant women and those with pre-existing medical conditions such as diabetes, heart disease and respiratory or immune problems.
There is currently a low risk of infection for individuals in the UK, but employers should keep the situation under review. If the outbreak worsens and more cases occur in the UK, you should carry out a risk assessment to gauge whether the working environment of high-risk individuals presents a risk of infection (e.g. because they will be exposed to individuals who are infected with the virus).
There is currently no vaccine for the coronavirus (unlike flu), so those at high risk cannot protect themselves. Where necessary, precautions should be taken such as moving particular employees to a different location or asking them to work from home. Consult with the individual before taking any action.
Employers have specific statutory obligations to take steps to avoid risks to which pregnant employees are exposed as a result of their work. Where it is not possible to avoid such risks by other means, pregnant employees must be offered suitable alternative employment on a temporary basis or suspended from work on medical grounds (on full pay) for as long as necessary. If the period of suspension continues into the fourth week before the expected week of childbirth, or the employee is ill after the start of the fourth week, this will trigger the commencement of maternity leave.
What about sick pay?
Any entitlement to company sick pay will be governed by the contract of employment. Contractual sick pay normally includes any entitlement to statutory sick pay. Employees without any contractual sick pay may be entitled to statutory sick pay if they meet the conditions. If employees are not entitled to full sick pay, you may want to consider paying it on a discretionary basis if staff would otherwise try to return to work while still sick.
Employees who are not sick but are being requested to remain away from work because they have just returned from China may be able to work from home and, if so, should be paid as normal. Even if they cannot work from home, they should be paid their normal salary if they are well enough to work but are being requested not to attend.
Employers can forbid work-related travel to China, but can they insist employees do not travel to China for personal reasons? You should consider carefully before imposing restrictions of this kind, as they might amount to indirect race discrimination (e.g. if staff are discouraged from visiting relatives or their country of origin). The risks of discrimination claims are dealt with more fully below.
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.
Race discrimination risks
Employers should be aware of the risks of direct and indirect race discrimination claims. There have been news reports of British Chinese people (or those who are mistaken as such) being racially abused in connection with the outbreak. Employers could be vicariously liable if their employees racially harass colleagues, even if the employer does not know and would disapprove of such behaviour.
Employers will avoid liability if they can show that they took ‘all reasonable steps’ to prevent employees behaving in such a manner. Taking reasonable steps might mean having well-publicised diversity and harassment policies, and training all staff on the issue. Managers in particular must be trained about their responsibility to identify and prevent discriminatory behaviour.
As mentioned above, if employers forbid personal travel to China, this may indirectly discriminate against staff of Chinese ethnic origin. Whether or not such a claim would succeed would depend on the level of risk and, in particular, whether the employer’s reasons for forbidding the travel are legitimate and its actions are proportionate. The individual’s reason for wishing to travel might be relevant here. Given that such staff could be required to take extra holiday to self-quarantine at home after returning, an absolute travel ban might not be reasonable.
If employers target staff of Chinese ethnic origin and request them not to come to work during the coronavirus outbreak, this could lead to direct race discrimination claims. Any request not to attend work should be related to potential exposure to the virus (see above) and should apply to all staff regardless of nationality or ethnicity.
Requesting staff who have recently travelled to Wuhan not to attend work during the incubation period might be indirectly discriminatory, if it affects more staff of Chinese ethnicity than others. This would, however, most likely be justified as a proportionate means of achieving a legitimate aim provided a well employee is not required to stay away from work for longer than 14 days after their return.
UK Visas and Immigration is preparing short-term interim guidance on the implications for immigration of the coronavirus outbreak, which it aims to publish by 7 February 2020. This will deal with scenarios such as people in the UK whose leave to remain is expiring but who cannot return to China because of the coronavirus.
Uncertainty remains about the exact characteristics of 2019-nCoV and its transmission. Official recommendations may change as experts learn more about the virus and the nature of the outbreak. Other employment issues may arise if the outbreak spreads widely in the UK, such as staff needing to take time off to care for dependents. Employers should keep the situation under review and stay alert for further government guidance.