Covid-19, more commonly known as novel coronavirus, which is believed to have originated in the Chinese city of Wuhan, has been declared by the World Health Organisation as a “public health emergency of international concern”, with the UK Chief Medical Officers raising the risk to the public from low to moderate. This has unsurprisingly raised a number of concerns for employers in respect of the appropriate workplace responses to key issues, which are explored in further detail below.
Employees returning to the UK from high-risk areas
Official advice for those who are arriving in the UK from the “Category 1” destinations of Hubei Province in China, Iran, lockdown areas in northern Italy or special care zones in South Korea, is to remain at home for 14 days and to avoid going into work or public areas, even if they do not have symptoms.
Advice to self-isolate also applies to those arriving in the UK from “Category 2” destinations (which currently include South Korea, Hong Kong, Japan, Thailand and Cambodia) who are exhibiting symptoms such as a dry cough, high temperature or shortness of breath, even if symptoms are mild. The official advice about who should self-isolate and in what circumstances is changing almost daily, and the NHS is now advising travellers who have returned from anywhere else in Italy (outside the lockdown zones) to self-isolate if they are exhibiting symptoms.
Employers are under a duty to ensure the health, safety and welfare of their employees. As such, employers may be justified in instructing those employees returning from Category 2 destinations to observe the 14 day isolation period, even if they are not exhibiting any symptoms of coronavirus (in other words, taking precautions that extend beyond those currently advised by the NHS and Public Health England (PHE)). In deciding whether to take such action, employers are likely to consider, amongst other factors, the physical proximity with which the returning traveller works with colleagues and the extent to which this could be limited (e.g. through home working), and whether there are any vulnerable or high risk employees who share the individual’s immediate office space. Where an employer instructs an individual to remain at home, the employee is entitled to receive their normal pay.
Employees are likewise under a duty to take reasonable care of their own health and safety and to ensure that they are not endangering others by their acts or omissions. Accordingly, if an employee should report for work against official advice to self-isolate, an employer may be justified in preventing their entry to the workplace and in invoking disciplinary proceedings.
Confirmed cases of coronavirus
Where an employee tests positive for coronavirus, an employer’s sickness absence policy would apply. In the circumstances, employers should consider relaxing their normal sickness absence reporting requirements, as it is likely to be impractical for an employee in isolation to obtain the relevant Fit Notes from their GP. Given the unique and serious nature of the virus, employers may also choose to discount absence due to confirmed coronavirus from consideration under any stage of an absence management process that is triggered by a certain level of absence. Ultimately, it is in the employer’s best interests if those who are sick and likely to spread the infection remain at home and do not feel under pressure to attend work for fear of losing their jobs.
Because of the severity of the infection and average period of recovery (some individuals will take up to a month to test negative for coronavirus), employers may consider extending entitlement to company sick pay where an individual exhausts their entitlement while suffering from the virus. Despite the increased salary cost, employers may be willing to extend sick pay entitlement if it dissuades employees from returning to work before they are fully recovered and no longer infectious. However, given the financial strain that the virus is likely to place on many organisations, the extent to which employers are able to extend existing sick pay entitlement may become increasingly limited.
Employees who self-isolate
It is likely that ever greater numbers of employees will be advised to self-isolate as the virus spreads. In addition to individuals returning from certain destinations, individuals who come into close contact with an infected person or who otherwise present symptoms of coronavirus, are also being advised to self-isolate.
During any period of self-isolation, employers should explore the possibility of remote working to enable employees to continue performing their roles to the extent possible. If able to work remotely, employees are entitled to receive their normal pay.
Remote working will not, however, always be an option, either due to the nature of the individual’s role or because the employer’s infrastructure cannot support it. Where employees are unable to work remotely and have self-isolated on written advice from a doctor or Public Health England (PHE), they will be entitled to Statutory Sick Pay (SSP) (subject to meeting the other requirements for payment). It is generally understood that the written notice issued by PHE following self-referral to the NHS’ 111 online coronavirus service is sufficient for these purposes. The government has recently announced that it will introduce emergency legislation to remove the waiting period before employees qualify for SSP, making payment of SSP available from the first day of absence.
Employees may also have a right to enhanced sick pay in these circumstances, depending on the wording of their employment contracts. In any event, ACAS advises that it is good practice for employers to pay contractual sick pay to employees who are advised to self-isolate. Paying contractual sick pay during self-isolation, or even providing normal pay where contractual sick pay is unavailable, will encourage more employees to follow medical advice to stay away from the workplace and, therefore, assist in limiting the spread of the virus.
Clearly, if the employee begins to feel unwell during any period of self-isolation and would be unfit to work, they would qualify for sick leave and be entitled to sick pay under the terms of their contract (either SSP or contractual sick pay).
Refusal to attend work
Given the fear and panic about the spread of coronavirus, it is likely that many employees will become anxious about attending workplaces and some may even refuse to attend. Employers should consider all refusals on a case by case basis, being particularly alive to those employees who are considered to be at high risk of contracting coronavirus (anyone aged 60 or over, pregnant women, and individuals with an underlying health condition, such as heart or respiratory disease, diabetes and cancer, and those with weakened immune systems).
Whilst an employee who unreasonably refuses to attend work will technically be absent without leave, it would be advisable for employers to discuss with the individual their concerns, prior to invoking any disciplinary procedure. It may be possible to alleviate the employee’s concerns by offering remote working (where possible), or addressing concerns about hygiene practices in the workplace or about using public transport at certain times of the day.
Employers should be alive to the impact on an employee’s mental health if they are forced to attend work when they have genuine concerns about their risk of infection. The situation may result in the employee taking sick leave for stress-related illness, which could be avoided if the employees’ concerns are addressed promptly. An employer could also face claims of constructive unfair dismissal where they are perceived to have acted unreasonably in the face of genuine health and safety concerns.
Where it is not possible to allay an individual’s concerns, an employer might consider offering unpaid leave where this is operationally possible.
Business travel
The current guidance from the Foreign and Commonwealth Office (FCO) advises against all travel to Hubei Province and Daegu, and against all but essential travel to the rest of mainland China, Cheongdo, ten small towns in the Lombardy region of Italy and one town in the Veneto region of Italy. Employers should adhere to the guidance and should not insist on employees travelling for business reasons to these regions. Some employers are choosing to take precautions that extend beyond FCO advice and suspend all but essential international business travel.
In any event, employers should be understanding if employees raise concerns about undertaking international business travel and should consider such concerns on a case by case basis, taking into account whether such employees fall within high risk categories or have other valid reasons to be concerned. Often, there will be alternative options to face to face meetings, such as holding video conferences or meetings via Skype.
It is also advisable to check that your company’s travel insurance policy will cover employees travelling to certain destinations in light of recent developments, and keep insurance cover under review if the situation escalates.
Personal travel
Whilst employers can insist that employees do not travel for work purposes, employers should carefully consider whether it is necessary to impose restrictions on personal travel. This is due to the risk of claims of indirect race discrimination, particularly if the reason for an employee to travel is to visit relatives in their country of origin (as the travel ban may disproportionately impact a particular group of employees). It may be that concerns about employees travelling to certain parts of the world could be mitigated by requiring such employees to self-isolate on return from their travels.
It would be sensible for employers to keep informed of employees’ travel plans, in order to make arrangements for their return to work. Should an area they are visiting be a high risk area, or should it turn into a high risk area while they are there, employers should prepare for the individual’s return and take any necessary precautions, such as instructing the individual to self-isolate if necessary.
Race discrimination
It has been widely reported that British Chinese people living in the UK, and other people mistaken for being of Chinese heritage, have been the subject of racial abuse as a direct result of the outbreak. Employers should be mindful that they could be held vicariously liable for acts of discrimination and harassment committed by their employees unless the employer can show that they took all reasonable steps to prevent such treatment. Employers should, therefore, be alert to any potential adverse treatment of employees, invoke disciplinary proceedings where necessary and consider training on key policies, such as diversity and inclusion.
To avoid claims of direct race discrimination, in responding to the coronavirus threat, employers should be careful not to single out any employee for different treatment based on the individual’s race or ethnicity. Employers should not withdraw a job offer on the basis that the candidate has recently visited, or is a citizen of, a country identified as high risk for coronavirus transmission. Employers should also ensure that they appropriately message any ‘risk management’ measures when communicating with their workforce, to avoid potentially offensive language or generalisations about particular racial groups.
Practical issues in the workplace
Employers may wish to consider implementing practical steps to help to protect the health and safety of the workforce such as:
- Displaying posters outlining the risks for those who have recently visited high risk destinations and explaining how to seek assistance promptly if they believe they could be affected;
- Considering a range of flexible working arrangements for employees, e.g. avoiding the rush hour for travel;
- Ensuring workplaces are regularly cleaned to prevent the spread of germs, particularly in communal areas;
- Providing hand sanitiser and tissues in key areas around the workplace;
- Considering alternatives to work-related travel;
- Ensuring employees are kept informed of key developments;
- Providing guidance on practical issues, such as whether to avoid hand-shaking in certain situations;
- Putting in place an infectious disease contingency plan that provides clear business continuity guidance for employees in the event that it is necessary to close the workplace.
Conclusion
As the spread of coronavirus is a fast-developing situation, employers should ensure that they are keeping abreast of official guidance to ensure a timely and appropriate response to any potential risk factors within the workplace.
Lloyd Davey
Sarah Taylor