fbpx

Corona Virus Update 17th March 2020

18 Mar Corona Virus Update 17th March 2020

 

Our team of employment Solicitors and HR experts have gathered the most recent employment / HR related queries on the COVID-19 outbreak and put them into an easy to read set of Q&A’s for our clients and network – this is being updated as we progress.

We can also provide a COVID-19 policy too.

Here we cover common day to day queries and also some points about lay off and variation to terms and hours for possible worst-case scenarios.

Any queries or questions please just contact the team any time on:

E-mail:                 enquiries@bridgeehr.co.uk

Team:                   01904 360 295

 Mobile:                 07983 607 388

 Employer’s Coronavirus Q&As: 17.3.2020

 1.  What do I need to be aware of for vulnerable/at risk people? 

Following yesterday’s announcement, the government confirmed that individuals who they considered to be vulnerable or more at risk of complications from contracting Covid-19 should begin practicing social distancing and work from home wherever practical.

So who is considered a vulnerable/at risk person in summary is as follows:

  • Over 70 years old;
  • Are pregnant;
  • Have a long term condition; and/or
  • Have a weakened immune system.

A detailed list is as follows:

The government have identified individuals they consider would be at a severe risk if they contra

  • people who have received an organ transplant and remain on ongoing immunosuppression medication;
  • people with cancer who are undergoing active chemotherapy or radiotherapy;
  • people with cancers of the blood or bone marrow such as leukaemia who are at any stage of treatment;
  • people with severe chest conditions such as cystic fibrosis or severe asthma (requiring hospital admissions or courses of steroid tablets); and
  • people with severe diseases of body systems, such as severe kidney disease (dialysis)

The guidance is clear that this list is not exhaustive and individuals should seek their own advice and guidance from their normal medical advisors if they have any concerns.

What do employers need to do if they have these at risk individuals in their workforce

 We recommend that employers ask those in the above at risk categories to make themselves known to relevant managers as some of these illnesses may not be something you are always aware of.  Ensure all medical information is treated in the strictest of confident and in line with your Data Protection policies and procedures.

Employers have a duty to undertake risk assessments to manage and mitigate risks to employees as a whole and particularly to specifically at risk individuals.  In these specific circumstances a bespoke assessment maybe required – we can help if necessary.  Employers should already be regularly risk assessing pregnant employees in any event and, as such, any previous risk assessment should be reviewed urgently.

The government are confirming that they will recommend that these at risk individuals should practice social distancing for at least 12 weeks which is due from next week and, as was the guidance earlier this week allemployees are been asked to work from home wherever possible.

Obviously, a significant number of these at risk groups will likely want to consider self isolating through the worst of the pandemic or longer potentially but that is not a current recommendation by the government who want to keep the country and economy moving.

Any employees concerns needed to be treated carefully at this time and in particular for those in the at risk group their illnesses could likely be considered a disability and as such you have obligations to make reasonable adjustments for them to attend work and to ensure they are not discriminated against, harassed or victimised in anyway for anything arising from their disability.

However, unless an individual are medically required to self-isolate (refer to the current guidance below) then they will not be entitled to SSP unless they actually develop symptoms or get signed off with an alternative illness which may be what many employees inevitably do.

If you determine that any employee with one of these risk factors does not need to attend work when they want to do so then this will likely be considered a medical suspension – further details are below.

Guidance on this point is still emerging and there are many permutations to consider such as if an individual requests to commence their maternity leave early, requests for annual leave, flexible working, working from home etc and we are available for guidance in these circumstances if required.

Do we have to make any of these adjustments for these at risk people?

If any employee is disabled you are always (once you know) obligated to consider reasonable adjustments and you could also be liable for a failure to make reasonable adjustments.

You have a legal requirement to assess the situation and do your best to adjust their job to allow them to do it, and the Covid-19 virus has created a new risk which you, as employers, must consider and wherever possible make reasonable adjustments – this is a very subjective test and advice needs to be sought if you are unsure on if a request is reasonable.  If you are able to allow them to work from home or otherwise in a safe, isolated environment, then this should be done along with consideration of any possible other alternatives and – where long term isolation is a potential prospect – it may be wise to obtain a medical or Occupational Health Assessment which we can assist with arranging.

If the role isn’t suitable to work from home i.e. it just can’t practically be done (for example say a waiter or a retail assistant) in those case it is less likely to be deemed in law a failure to make reasonable adjustments, for example, for you to refuse to pay a disabled employee who self-isolates prior to public health / medical guidance to do so.  This is because the legal objective of the reasonable adjustment obligation is to help ensure an employee is able to actually work.  However, there are other risks, and it would be essential to take guidance before taking steps which could create claims later on.  Whilst you may have satisfied your requirement to make reasonable adjustments, a discrimination claim could still exist.

If you don’t have time to do all of the below you may have to try and come to some agreement rather than demand attendance in the present circumstances of the COVID – 19 outbreak.

Ideally, we recommend: –

  • Assess the medical condition and risks posed;
  • Risk assess steps that can be taken to reduce risk and try and agree a way forward;
  • Obtain an occupational health and /or medial on the condition and risk factors;
  • Assess adjustments to reduce risks and allow work attendance.

You would then know what the risks are, if their condition does put them in the high risk category and whether or not letting them work at home is practically possible. If not, you can then make an informed choice on a way forward based on all the facts available.  This is what is expected of a reasonable employer.

  1. Can we choose to medically suspend / send an employee home?

If you are talking about an employee who doesn’t meet the current guidelines for self-isolation, or who hasn’t been diagnosed with the illness, but you are concerned about their potential to spread the infection, then, in theory yes, you can suspend the employee or insist they go home, to protect the Health & Safety of other workers.  Ideally you would have a contractual right to do so, but if not, it’s still possible, although you will need to assess whether it would be a reasonable action to take in the circumstances.

Whether it is reasonable or not, unfortunately, is one of those questions which will all depend on the circumstances and the sector (for example, healthcare settings such as care homes which are more vulnerable justifying stringent measures) and of course the symptoms presented, risk assessment undertaken etc.  It’s not a “one size fits all” answer, but we will be able to offer bespoke advice if required.

In the present situation facing businesses, one very important thing is to make sure that the front-line staff, your teams and managers, understand what to do here.  They will likely be having to make decisions day to day, so clear guidance for them is essential.

Government guidance is changing, sometimes more quickly than daily, but as currently the guidance is to self-isolate, it is worth looking now to see whether or not a contractual right exists to do this.  Our advice is that talking to staff now, in advance, is so important in setting up a consultative and open approach to what to expect in these scenarios.

Whilst it is ideal to have contractual and policy terms (which we are helping clients with now) any such suspension (until a 111 or GP assessment – see below) should be on full pay and/or in accordance with your policies on such matters, depending on your sector and contractual terms.

You should also keep a clear record of the assessment of the situation, including: –

  • the basis for it;
  • the risks to the business and other staff and customers; and
  • the evidence of the symptoms;
  • referral to NHS 111 for the employee;
  • consideration of the alternatives for the employee (such as working from home); and
  • the terms upon which it will take place for the employee (full pay until SSP / sickness applies, see below).

Where the employee is someone who is or should be (in accordance with current Government guidelines) self-isolating, then they will qualify to be simply be placed on sick leave rather than such a suspension.  What happens at this point will depend on your current sick leave rules, and what the employee qualifies for.  Some discussion on contacting the NHS 111 to obtain the correct guidance here should help.

NB: Below we also discuss closure and reduction in hours and use of holiday in certain circumstances or banked hours to use later too.  We have considered a lot of practical options in worst case planning that should be made clear to teams now to avoid implementation delay if needed later.

  1. What are the new changes to SSP and medical certification and when do they apply?

 The government is bringing forward emergency legislation (temporarily): –

  • making statutory sick pay applicable from day one, that is the first day of sickness, (it may also apply to those who need to self-isolate to care for another in their home if public health guidance requires them to);
  • small employers (under 250 employees) will be reimbursed SSP paid for the first 14 days of sickness caused by COVID-19; and
  • there will also be a temporary alternative to the fit note, allowing employees who are advised to self-isolate to obtain notification from NHS 111 as medical evidence instead.

However, in the interim please ensure you keep clear records of dates and reasons for absences and require all staff to complete self certifications forms and this will be essential in managing sickness absence and also potentially reclaiming SSP relief that the government have promised small businesses in due course.

  1. What if an employee refuses to attend work and/or self-elects to isolate – without any apparent need / guidance to do so?

They will not be entitled to SSP until medically certified or via public health guidance (via NHS 111 or a GP/doctor etc.) requires them to do so.

If they can work from home then that could be a solution, if not….

What are the employee’s reasons for doing this?

You’ll need to check the public health guidance in place at the time, does it apply to the employee’s circumstances or is there an underlying issue here such as a disability or care obligation?

If for example, it is because they have a disability that makes them vulnerable, then we advise to proceed with caution – if you treated this strictly in that situation you could create discrimination claims.

You’ll need to explore it with them and bear in mind employers must balance their rights to require an employee to attend work and do their job versus, for example, an employee in a high risk category who is putting their own health at risk by doing so, for example, those who already have conditions causing an already supressed immune system.

This type of balance should be explored carefully, and alternatives considered to ensure both parties get what they need.

Where, however, the employee’s reasons don’t appear genuine or enough to justify their self-elected isolation, caution is required and we recommend you take advice.  In some cases, there may not be any material basis and thus, it could warrant an investigation and a disciplinary process, but that should in most cases be a last resort.  We can talk through some practical suggestions with you, bespoke to your situation.

  1. What happens if an employee actually contracts the virus and attends at work?

From a Public Health England perspective, once it is established, then the guidance will require them to self-isolate and follow government guidance.

In terms of their employment rights:

  • This will be treated like any other sickness absence and SSP will apply – as noted, the SSP deemed incapacity rules are now extended covering those who self‑isolate in accordance with government guidelines and the government intends to extend SSP to those caring for persons within the same household with symptoms of COVID-19 – they aren’t amended yet and the carer would we think be covered only by the new rule on deemed incapacity if the public health guidance requires them to self-isolate.
  • In those cases, company sick pay terms may be triggered subject to the specific terms upon which they would normally apply.

If the Employee presents at work, then the present guidance is: –

  • Any country advice has now been removed from PHE guidance, therefore if presenting with symptoms the employee should be removed to an area which is at least two metres away from other people.
  • Ideally this a room or area in isolation and a window should be opened for ventilation.
  • The guidance also states that NHS 111 should be called, or 999 should be called if it is an emergency (e. only when the employee’s condition is presenting as is seriously ill, injured or with a life-threatening issue).
  • The Employee should remain at least two metres away from others.
  • They should avoid touching anything or anyone.
  • They should cover their mouth and nose with a disposable tissue which should be disposed of or they should cough/sneeze only into their elbow.
  • If needed a separate toilet facility should be used.
  1. Can we use holiday pay instead?

Staff who are not on sick leave can be required to take statutory annual leave – providing correct notice is given to take such statutory annual leave.   We can assist with this, if required.  If the Company decides to have a period of shut down, then this may be combined with compulsory annual leave, for example.  We can help you to negotiate this if necessary.

It is different once they are on sickness absence, once on sick, you can’t order them to do so, it would have to be requested by them or by agreement.  As it’s individual choice, some employees may wish to do this, whilst others need to keep their annual leave for other purposes.

Again, talk to staff and make sure everyone knows the options open to them, it may be that they request to take leave to help their own finances.

  1. What if an employee contracts the virus during or because of travelling on a work trip?

Employers need to be flexible here and may need, in certain cases, to consider offering more support, for example, if only SSP applied but it was contracted due to work travel, then the employer may wish to offer some element of discretionary extra pay. At this stage no international travel should be allowed for business purposes.

  1. What if we need to close operations?

If this is a temporary measure to cleanse premises, stop the spread or due to a downturn then we recommend two temporary solutions: –

  • holiday can be used (as mentioned above);
  • banked hours to use later;
  • varying terms to reduce hours and pay temporarily (see 8. below);
  • temporarily laying off staff (see 9. also, below)
  1. Varying or reducing hours of work

In uncertain times it is sensible to consult with staff early and have agreements in place now to use in extremis for lay-off or to vary terms of hours and locations of work when needed later.

Having these agreed systems mapped out and ready to implement with express agreement of teams is crucial to get the best out of their use.

We are helping clients with this now as part of their planning.

Varying / reducing hours and times of work is a fundamental change to terms and can create a breach of contract and claims.  However, when consulted upon and agreed it can be an excellent way of pulling together and riding out temporary difficulties in the short to mid-term, whilst retaining valued staff. It also avoids the capital outlay of redundancy costs.

We are recommending consultation begins now with teams to help all forward plan and agree measures and how they may be used so that they can be deployed quickly at the time of need if/when deemed necessary.

  • Laying off staff

You can only do this if you have a contractual right to do so, or you have secured express agreement from all those staff affected, in advance.

That is why it is so important now to work on policy documents to issue to staff putting options in place to use in extremis if needed later – the we all know where we stand.

Lay-offs are heavily regulated in law with very specific time lines and notice requirements and should be prepared carefully with our advice and mapped out in advance prior to implementation.

We recommend preparation of a circular to all staff now offering reassurance and outlining worst case planning now (stressing very worst case for planning and reassurance) to include all options with FAQ’s and seeking confirmation from teams that any new policy be agreed. 

  • What if schools closed, do we have to let staff say off work?

Usually, it wouldn’t be simply OK for an employee to work from home and look after the children.  The existing law allows for only unpaid and emergency time off and will not apply to long term school closures.

However, these are unchartered waters and school closures may go on for some time, and thus, we are advising teams to pull together where they can and by all means look at alternatives and assess risks (remembering health and safety duties owed to home-workers).

Above all, employers may well need to be more pragmatic than usual and systems set up to facilitate working from home should be looked at now, as that could well just be the solution needed in many cases to keep operations going.

Whilst many parents already do have some family ‘back up’ for childcare, those that don’t could perhaps do half days for each other, one parent looks after the children for the other.

In addition, the normal “back up” may well be grandparents, and it would be entirely reasonable for employees not to risk their grandparents’ health in this way.

Indeed, if the government does introduce the requirement for the over 70s to self-isolate, many parents will be struggling to cover normal holidays, let alone school closures.

Employers will need to be alive to this, and the “normal” rules are unlikely to be sufficient.

In addition to the existing employment law rights for unpaid time off to care for dependents, and unpaid parental leave, it’s important to check your own policies, which may be more generous and update them too – we can help here too.

It may be that temporary policies could be necessary in order to maintain business function, and we can help you organise this.

  • What do we do with employees who are in a ‘high risk’ group?

What do we mean by high risk?

Some more common examples would presently include, those over 70, those with lung diseases like asthma and more generally those with any pre-existing health conditions such as diabetes and those with cancer, and other long-term conditions which would result in a compromised or suppressed immune system.

Such conditions would also be legal disabilities protected by employment law thus, further placing a health a safety obligation upon the employer too!

As with all this advice, each case will be slightly different and depends on the circumstances.

An employee who travels in their car on their own to an isolated office with minimal human contact would be at negligible risk, whereas one who has to travel on public transport to a busy office with lots of other people would be in a far greater risk.

Risk assessments will need to be done for each and were you to demand these employees had to continue to use public transport to travel to work to attend a workspace with large gatherings of staff (for example, open plan work spaces or shop floors), and you then refused to pay them or even disciplined them if they consequently refused, then it’s likely that you could have a problem with potential claims for discrimination and/or constructive dismissal.

Discrimination can arise because, even though the rule that everyone has to come into work regardless applies to everyone equally, it would have a disproportionate impact on these higher risk groups.

This means they could potentially have a claim for indirect discrimination, unless you can show that the rule you are applying is justified.

In addition, specific claims can be made if you treat a disabled person less favourably after, say, they self-isolate because they are a higher risk category and have a disability, then that treatment arises from their disability thus, again, creating a claim.

In these cases, please do contact us and take advice, we want to help, and we are available to support you!

It could also be a breach of your obligation of mutual trust and confidence to an employee to insist they risk their health by attending work or to discipline them for refusing to do so.

So, what to do here? Practical tips….

What is necessary is to consider first whether there are other reasonable options available for example, staggered travelling times, distance working etc.

In the situation where there really is no other alternative, then you will need to consider how reasonable their concerns are, using your risk assessment procedures.

Assess each case carefully, balance the business needs with the individual needs.

If you can show you can reduce contact and risks to the employee enough perhaps by using separate workspaces, giving them parking to drive in alone, imposing strict sanitation rules etc. then the refusal may not be justified.

We can help talk you through some practical ideas here.

If any employee is disabled you are always (once you know) obligated to consider reasonable adjustments and you could also be liable for a failure to make such reasonable adjustments too for example, to help them work from home or to reduce risks to allow them to come into work.

You have a legal requirement to assess the situation and do your best to adjust their job to allow them to do it, and the Covid-19 virus has created a new risk which you, as employers, must consider.

The best solution is of course working from home and if you are able to allow them to work from home or otherwise in a safe, isolated environment, then this should be done.

If the role isn’t suitable to work from home i.e. it just can’t practically be done (for example say a waiter or a retail shop customer service person) in those cases it is less likely to be deemed in law a failure to make reasonable adjustments, for example, for you to refuse to pay a disabled employee who self-isolates prior to public health / medical guidance to do so.  This is because the legal objective of the reasonable adjustment obligation is to help ensure an employee is able to actually work.

However, there are other risks, and it would be essential to take guidance before taking steps which could create claims later on.  Whilst you may have satisfied your requirement to make reasonable adjustments, a discrimination claim could still exist.

If you don’t have time to do all of the below you may have to try and come to some agreement rather than demand attendance in the present circumstances of the COVID – 19 outbreak.

….Practical tips….

Ideally, we recommend: –

  • Assess the medical condition and risks posed;
  • Risk assess risk reductions / adjustments and try and agree a way forward;
  • Obtain an occupational health and /or medial on the condition and risk factors;
  • Agree / implement adjustments to reduce risks and allow work attendance.

You would then know what the risks are, if their condition does put them in the high-risk category and whether or not letting them work at home is practically possible. If not, you can then make an informed choice.

13. Can we require employees to undertake work-related travel overseas?

This depends upon the nature of the government advice (via the Foreign and Commonwealth Office ‘FCO’) specific to the pandemic and travel to the areas proposed with that in mind.

In all but very exceptional cases if the FCO have advised against travelling to a specific country then no, it would not be reasonable to require travel there, for example, it may amount to a breach of your health and safety obligations and your implied obligations to the employee too and there is some debate on it even extending to a personal injury claim should harm be caused to the employee as a consequence.

  1. What if we have an employee who is now stranded overseas on a

work trip?

Whilst an employee is abroad its highly likely you’ll have a continuing obligation to support them.

Sick pay / leave could be applied if for example, the employee can’t travel because:

  • they have COVID-19;
  • they are thus, restricted from travel; or
  • they aren’t fit to travel.

You would also likely need to consider and (check terms and insurance here) supporting them with:

  • continuation of pay;
  • pay for accommodation;
  • expenses and food / subsistence; and
  • medical assistance (there should be insurance to help here too, check with your broker)

Where they can’t travel due to isolation or local government restrictions on movement it is our view the same kind of support should be applied.

  1. What about an employee stranded overseas due to or after a holiday?

If they are too unwell to travel home, then they are sick and are treated as such.

As already noted, and in this case too, the employee could take more available annual leave or you could agree to bank some pay/hours for later cover.

If they can’t travel due to government restrictions then their pay, and entitlements to any form of pay and support, will be up for review and agreement in accordance with their terms, together with what you can help them with on a case by case basis.

  1. What about traveling / work in the UK?

First, you’ll need to check the up to date public health advice.

As it stands now generally employees are by in large (subject to public health guidance and restrictions and of course sickness and self-isolation issues discussed above etc.) required to do their jobs as they would normally be required to do so.

As noted elsewhere in this note albeit in a different context, you would need look at the employee’s own risk and conditions, both directly and indirectly for those who they care for.

For example, are they in a high-risk category, based on age, disability etc. or do they care for someone with a disability?  In this regard there are discrimination and health and safety obligations to consider carefully.

  1. What do we do with employees returning from a high-risk area?

In our view it would appear (particularly bearing in mind the recent government guidance) to be sensible to consider implementing the requirement for employees who return from a high-risk area to stay at home.

Again (subject to terms and agreement) using work from home, holiday, banking some hours could all be options here.

SSP or full pay in this situation would simply depend on whether or not they fall within the public health authority guidance on self-isolation.

Whether public health guidance to self-isolate and thus SSP applies in these cases is currently (as we write) not clear. However, if it becomes clear that they are required to self-isolate upon return then SSP would apply.

Where self-isolation and SSP doesn’t apply then they would in principle be entitled to full pay.

Our team of employment Solicitors and HR experts have gathered this Q & A from the recent queries we’ve received on the COVID-19 outbreak and we hope you’ve found it helpful.

We can also provide a COVID-19 policy and help you run any required consultation to enable you to change your operating model

Any queries or questions please just contact the team any time on:

 

E-mail:                   enquiries@bridgeehr.co.uk

Team:                    01904 360 295

Mobile:                  07983 607 388

Coronavirus risk assessment template