The pace of change in guidance on the coronavirus outbreak for employers and employees has not slowed this week. Boris Johnson announced a number of key new measures on Monday 16 March in relation to the coronavirus situation. Public Health England has updated its key guidance for employers and employees as a result of these new measures on Tuesday 17 March and today, Wednesday 18 March. There are also some updates on the coronavirus bill in relation to SSP. We report on the key aspects of these changes below.
New measures
Key points for employers from Boris Johnson’s speech on Monday include:
- If one person in any household has symptoms of coronavirus (a persistent cough or fever) everyone living with them must stay at home for 14 days.
- By next weekend, those with the most serious health conditions must be “largely shielded from social contact for around 12 weeks”.
- People to work from home where they can.
Stay at home guidance
Public Health England updated its Stay at Home guidance on Monday 16 March 2020 (see Covid-19 stay at home guidance). This guidance applies to these with coronavirus symptoms (who do not require hospital treatment) and those living in households with such a person. In summary, the effect of this guidance is that:
- Those who live alone and have symptoms of coronavirus, however mild, should stay at home for 7 days from when the symptoms started.
- For those who live with others, all household members of a symptomatic person must stay at home and not leave the house for 14 days. The 14-day period starts from the day when the first person in the house became ill.
- If any member of the household starts displaying symptoms, they need to stay at home for 7 days from when the symptoms appeared.
Emergency legislation (Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020) is now in force that provides that individuals who self-isolate to prevent infection or contamination with coronavirus in accordance with guidance published by Public Health England on 16 March 2020 are to be treated as incapable of work and, therefore, potentially eligible to claim statutory sick pay (SSP). This applies to both those who are self-isolating with symptoms, and those who are self-isolating because someone in their household has symptoms.
The guidance from Public Health England for employers and businesses on coronavirus (see Guidance for employers) was updated yesterday (Tuesday 17 March) and today (Wednesday 18 March (“Guidance for Employers”). It reiterates that those who follow advice to stay at home and who cannot work as a result will be eligible for SSP, even if they are not themselves sick. It states that employers should use their discretion and respect the medical need to self-isolate in making decisions about sick pay. The guidance also strongly suggests that employers use their discretion around the need for medical evidence for a period of absence where an employee is advised to stay at home either as they are unwell themselves, or live with someone who is.
If an employee is staying at home under the Public Health England guidance, but has no symptoms, that employee may be able to work from home (where their role allows and where they have the requisite equipment). It may be reasonable for an employer to request that they do work from home, in which case, they should receive full pay.
Vulnerable people
Boris Johnson has announced that, by next weekend, those with the most serious health conditions must radically reduce their social contact for around 12 weeks. Public Health England published new guidance on social distancing on Monday 16 March 2020 (see Guidance on social distancing).
This guidance covers everyone and means that all of us should be reducing our social contact. Most particularly, the guidance applies to those who are aged 70 or older or who are under 70 but have one of the listed underlying health conditions (including those with chronic respiratory diseases, such as asthma or chronic heart disease and those who are pregnant). The guidance says that these vulnerable people should be particularly stringent in following social distancing measures. A further group of people (such as people with cancer who are undergoing active chemotherapy or radiotherapy or those who have received an organ transplant and remain on ongoing immunosuppression medication) should rigorously follow the social distancing advice in full.
The advice includes avoiding non-essential use of public transport, varying travel times to avoid rush hour (when possible), avoiding contact with friends and family and working from home (where possible). The guidance says that employers should support employees to work from home and that they should refer to the Guidance for Employers for more information.
The Guidance for Employers states that it is good practice for employers to ensure employees who are in a vulnerable group are strongly advised to follow social distancing guidance. It states that these employees should be strongly advised and supported to stay at home and work from there if possible.
This social distancing guidance may apply to many employees. It is not entirely clear what right to pay vulnerable employees have. It seems likely that the new legislation will apply to such employees, in the same way as it does for other employees self-isolating. This would certainly be in keeping with public policy at the moment. They are isolating themselves from other people (not total isolation) but are reducing social contact in such a manner to prevent their own infection. It is in accordance with guidance from Public Health England dated 16 March. If they are able to work from home, they should be paid full pay. Otherwise, (even if they have no symptoms and are not in the same household as someone with symptoms) they are likely to be entitled to SSP.
Employers are under a special duty to assess any risks to employees who are pregnant, have recently given birth or are breastfeeding, and to take steps to alleviate such risks. Where their role and hours cannot be adjusted to reduce the risk and where an employer is unable to offer suitable alternative work on terms that are not "substantially less favourable”, an employer must suspend a pregnant employee on full pay. Pregnant employees can still be asked to work from home, but if they are unable to do so, they may be entitled to full pay is they self-isolate.
Closing workplaces – working from home
Many employers are closing or partially closing their workplaces this week given the advice from Public Health England to work from home. Employers need to consider if they have the contractual right to ask employees to work from home. This could be a mobility clause in the employment contract, allowing employees to work anywhere within a certain area, or an express right to ask employees to work from home. Consideration also needs to be given to equipment for working from home and payment for such. There may also be health and safety implications of working from home.
Employees working from home would generally be entitled to full pay. This may become a more complicated issue if/when schools close and some employees are only able to work part time, or not at all.
Employees caring for children or others
There is a statutory right for employees to take reasonable unpaid time off work to take necessary action in respect of dependants where there is an unexpected event or emergency. The Guidance for Employers highlights this right in relation to looking after children or arranging childcare because of school closure or to help children or another dependants if they are sick. There is no statutory right to pay for this time off, but the Guidance for Employers confirms that some employers might offer pay depending on the contract or workplace policy.
If an employee is self-isolating and caring for a child or dependent who is sick in their household, they would be entitled to SSP at a minimum. It also might be the case that employees can actually work whilst caring for others or looking after children, perhaps working part-time or flexible hours. Employers may wish to explore possibilities with their employees to come to an agreement about what works for both parties.
New legislation - the coronavirus bill
The government has set out details of the coronavirus bill. Amongst other measures, the bill includes:
- SSP from day 1: Temporary suspension of the rule that means SSP is not paid for the first 3 days of work that an employee is absent because of sickness (waiting days). The government has confirmed that the provisions in the coronavirus bill in relation to SSP will have retrospective effect from 13 March 2020. The Guidance for Employers makes it clear that this rule currently applies to all those who self-isolate.
- Reclaiming SSP for SMEs: small and medium sized businesses (those with fewer than 250 employees as at 28 February 2020) will be able to reclaim SSP paid for sickness absences relating to coronavirus for up to two weeks per employee. These provisions in the bill will also be retrospective with effect from 13 March 2020.
More details of support for businesses can be found in the government guidance here.
Tags: coronavirus, corona, COVID-19, virus
Frances Rollin