As novel coronavirus (COVID-19) continues to spark a global pandemic, the World Health Organization has declared that this is a public health emergency of international concern. The UK Chief Medical Officers have (at the time of writing) raised the risk to the UK from low to moderate. In this period of unrest, we answer some key questions to clarify employers' legal obligations and support you in protecting your business and people.
What are employers' obligations in respect of COVID-19?
At time of writing there are no specific mandatory obligations for employers in respect of COVID-19. The Health Protection (Coronavirus) Regulations 2020 ("CV Regulations") only apply when the Secretary of State declares, by notice published on www.gov.uk that the incidence or transmission of COVID-19 constitutes a "serious and imminent threat to public health". Currently the risk level in the UK is still "moderate". Therefore, the CV Regulations do not currently apply and the specific processes contemplated in such regulations (e.g. regarding screening requirements and isolation/detention requirements) are not legally enforceable. Unless or until the CV Regulations come into force, employers should ensure that they are taking any necessary steps to protect their employees. All employers have health and safety obligations to keep employees informed about health risks that may arise in carrying out their duties and to ensure that working practices do not create undue risks to employees.
As such, employers should carry out a risk assessment and consider any factors that may make employees particularly susceptible to infection. Employers should also consider circulating up-to-date information on good hygiene practices and provide any necessary equipment to facilitate this, such as hand sanitisers. For example, we recommend issuing a reminder on action employees can take to help stop viruses like coronavirus spreading. Such advice may include:
- Cover your mouth and nose with a tissue or your sleeve (not your hands) when you cough or sneeze
- Put used tissues in the bin immediately
- Wash your hands with soap and water often – use hand sanitiser gel if soap and water are not available
- Try to avoid close contact with people who are unwell
We further recommend notifying employees where they can access more information if they are concerned. In the UK, the NHS website and the WHO website have more information about how you can reduce the possible spread of infection.
If your business requires a high degree of international air travel this will also be a relevant risk factor and you should consider if there are any ways that you can mitigate that risk. Would it be appropriate to introduce a travel ban? Should this be restricted to particular areas? Could you limit non-essential travel? You will need to ensure that you keep a watching brief on government advice regarding travel and ensure you update your policies accordingly. The government has recently issued guidance to employers, which includes links to travel advice and recommended responses to various scenarios, including what to do if someone becomes ill with suspected COVID-19 in the workplace.
As with day-to-day operation of the business, employers must not treat anyone differently based on a protected characteristic such as race or ethnicity. Employers should be careful, for example, asking certain employees to use protective masks when coming into work or even not to come into work at all as this may inadvertently single out employees or workers with a particular characteristic.
Can employers request or require information from an employee about potential or actual exposure to the virus?
The question of whether an employee can be asked to sign a declaration about where they have been, their exposure to the virus, or be required to provide information to an employer in order for the employer to provide confirmation to a customer sits firmly in the crossover between data privacy and employment. UK employers are under a duty to provide a safe and secure working environment under the Health and Safety at Work etc. Act 1974. The collection of such data may be necessary to protect the health, safety and welfare of other employees. UK employees are subject to a general obligation to comply with reasonable instructions or requests issued by their employer, and an employer may take disciplinary action where an employee fails to do so. Employers may therefore require an employee to confirm where he/she has spent the past 15 days (e.g. by country, region or city) in order to assess the level of risk to the workforce. Employers may not, however, ask employees to confirm that they are not infected or request a medical certificate to the same effect.
Any such data that an employer has about where an employee has been or their health must also be processed in line with the applicable privacy requirements. Information about an employee's health (such as whether the individual has been diagnosed with the virus or is suffering from any symptoms) is sensitive personal data and accordingly additional requirements and obligations apply to the processing of such data. Despite the GDPR being EU-wide legislation, the position is complex from a European data privacy perspective. Employers will find that the type and extent of the information they can compliantly process, and the legal basis for doing so, varies from country to country.
- In the UK, employers should be able to process such employee information by relying on Article 9(2)(b) GDPR together with paragraph 1, Schedule 1 Part 1 of the UK Data Protection Act 2018, on the basis of the health and safety duty referred to above. This will be limited to information used only in the context of health and safety e.g. decisions relating to office closures or disinfecting the workplace.
- UK employers would need to show that the collection of employee information is necessary to protect the health, safety and welfare of its employees, and should document its consideration of the risk to its employees and of any alternatives considered.
- Employers would need to have an appropriate policy document in place for such processing and comply with key data protection principles and obligations (such as transparency, data minimisation and security requirements).
Employers may also face situations where a customer/client requires travel or health information relating to their employees when visiting the customer/client's site.
- Where this applies, the employer should as a starting point seek to provide generic reassurance to the client / customer.
- If this does not suffice, employers should consider whether there are grounds for the employer to provide certain information to the third party. Employers could also consider advising employees that they can provide information to third parties, if requested and if they are happy to do so.
- Unless there is a clear legal obligation on the employer to do so, employee consent is likely to be the only applicable legal basis for sharing such information with third parties (unless, for example, the employer is legally obliged to do so). To be valid, consent must be freely given.
- The company must not require employees to provide this information to third parties and should consider carefully what, if any, further action to take if the employee refuses to do so. There is a risk that where the employer requires employees to attend client sites, any employee consent to the provision of information in order to access those sites would not be freely-given and therefore not valid.
The position regarding European data privacy rules and how they impact information relating to COVID-19 is developing. A number of EU governments have issued further guidance and more still are considering whether emergency legislation may be required, particularly if the situation escalates. The position will need to be kept under review as the situation evolves and further guidance becomes available.
What should employers do if an employee is absent or infected?
There is currently no need for employers to notify, inform or consult the NHS or other authorities when an employee has been exposed to the virus and Public Health England (PHE) health protection services will contact employers where necessary. There are also no obligations to notify, inform or consult with customers, third parties or employee representative bodies. However, it may be advisable to keep such bodies informed.
The NHS is currently advising people who may have come into contact with the virus to self-isolate for 14 days and some UK schools are temporarily closing if children have been on holiday in northern Italy. As of the date of writing, PHE has advised self-isolation for the following groups of people:
- People who have travelled back from an area where COVID-19 is known to be present and have symptoms and are awaiting a test result
- People who are identified as being a close contact of someone with COVID-19
- Returning travellers from Hubei province in China, Iran, lockdown areas in northern Italy and special care zones in South Korea, even if they do not have symptoms
- Returning travellers from certain other countries or areas, including other parts of China, northern Italy and South Korea, Japan, Macau, Malaysia, Singapore, Taiwan, Thailand, Cambodia, Laos, Myanmar, if they have a cough, high temperature or shortness of breath (even if the symptoms are mild).
To manage absences due to self-isolation, quarantine, or looking after an infected relative, employers should remind employees of their sickness absence policy and clarify the position regarding COVID-19 if there are any amendments to the policy. In general, sickness absence policies are unlikely to cover situations where employees are not actually sick but are in self-isolation or quarantine because they are concerned that they may have been exposed to the virus. As such, amendments may, for example, include not requiring a sick note for quarantined employees (as they will not be able to get one).
The risk of significant numbers of UK workers being quarantined and unable to attend work is becoming increasingly likely in the UK. You should consider how you would deal with such scenarios and ensure that you take a consistent and clear approach. There is no statutory right to sick pay in such situations but ACAS suggests it is good practice to treat quarantine as sick leave and to follow your normal sick pay policy or otherwise agree for the time to be taken as holiday. Although you may wish to consider whether you would treat medically-sanctioned quarantine in the same way as self-directed isolation, you should ensure that your approach and policies do not inadvertently help the spread of the virus by encouraging employees to come into work when they should really remain at home.
Further, employers should consider their approach to dealing with employees who are not required to self-isolate under PHE guidance, or due to infection, but want to stay at home to avoid being infected by others. In this situation, employers may require employees to attend work and refusal to do so could be treated as a disciplinary issue. However, employers should take employees' concerns seriously and keep the position under review as the situation develops. Be aware also that employers will need to continue paying employees (unless there is a clear contractual right not to do so) if the employer directs them not to come into work, for example because they have been to an area with a COVID-19 outbreak.
If employees are unable to attend work because their child's school has been closed or they need to look after a relative who has coronavirus, they may be legally entitled to reasonable unpaid time off (and the right not to suffer detriment as a result of invoking this right). In addition to this statutory right, you may also have a policy on leave to care for dependants which could be triggered in these circumstances.
What are employers' obligations where offices are partially or fully closed?
The UK government is, as at time of writing, not recommending that employers close offices whilst laboratory results for suspected cases are awaited or where an employee has a confirmed case of COVID-19. In such situations, the PHE local health protection team will contact employers to discuss the situation and provide advice.
If there is a temporary business closure, employers are obliged to continue paying employees' wages in full unless there are contractual provisions that can be relied upon or parties specifically agree otherwise.
Employers can "lay off" employees for a temporary period without pay if there is either an express contractual right to do so, an agreement covering the issue between the employer and the relevant union or a national agreement for the relevant industry. However, employers should be wary because employees may seek to claim statutory redundancy payments or statutory guarantee payments if they meet the relevant criteria for each type of payment.
As an alternative, employers may request employees to work from home by agreement or exercise their right to require employees to take paid holiday at a specific time, provided that they comply with the relevant notice requirements.
Where can employers and employees access local and national advice?
In the UK, the government has issued guidance and advice to businesses and travellers in general. According to this guidance, businesses should remove employees suspected to have been exposed to the virus and put them at least 2 metres away from anyone else until emergency medical services arrive. Those returning from travel overseas to affected areas should avoid attending work, be self-isolated and call 111 for advice.