Coronavirus: Update for Employers
Further to the most recent developments in respect of the Covid-19 outbreak, please find detailed below Howarths’ latest advice for employers in respect of the key employment and HR related issues.
When it comes to self-isolation, the current advice depends on an employee’s symptoms and historic exposure.
The current guidance is that a 7-Day isolation applies when a person suspects that they have symptoms, however mildly they may present. A 14-Day isolation applies when a person has been exposed to a confirmed case of Coronavirus but who have not shown any symptoms or, visited a high risk area. As of 16th March, the 14-Day isolation period also applies to anyone who shares a house with someone who has been displaying symptoms, has a confirmed case of Coronavirus or, who has visited a high risk area.
If employees who are supposed to be self-isolating are seen out and/or publish posts on social media which suggest that they are not refraining from attending public places, employers are entitled to investigate this and potentially take disciplinary action if it considered appropriate to do so.
Sick Pay and Fit Notes
Statutory Sick Pay (SSP)
The Statutory Sick Pay (Coronavirus Amendment) Regulations 2020 came into force on Friday and they deem any periods of self-isolation as sickness absence.
The government has announced that SSP will be payable from Day One but as yet, there is no legislation that actually confirms this. Similarly, there is no confirmation of how employers with less than 250 employees can claim back any SSP from the government. These details are expected in a few days, and as soon as relevant information is released we shall provide an update.
Certifying Sickness Absence
The existing rules regarding the presentation of a fit note to access SSP still apply. Employees can still self-certify from work for the first 7 days after which a fit note is required. The current legislation position requires the payment of SSP from day four of absence whether the absence is due to self-isolation or not however, it is advisable to exercise discretion and make payment from Day One in light of the hotly anticipated legislation referred to above.
Requesting fit notes during self-isolation
Due to wider delay measures being implemented, it is not always going to be possible for employees who are self-isolating to provide a fit note after the first 7 days of absence in the usual way. Many GP practices are not, for example, seeing patients with suspected Coronavirus and fit notes cannot be issued by the 111 service.
Hopefully, the impending legislation will address some of the issues in this respect however for now, we would recommend that you relax your rules around the submission of fit notes during a period of self-isolation when it comes to both validating absence and paying SSP or company sick pay.
If a person has been tested positive for Coronavirus and is under the care of medical professionals, then it would be reasonable to expect them to provide a fit note in the normal way.
Company sick pay
Company’s with internal sick pay schemes are entitled to follow their normal policies when it comes to cases of suspected Coronavirus. There is no immediate obligation on employers to pay company sick pay where an employee is unable to provide a fit note, if this is a normal requirement.
Preventing employees from coming into work and Employees who have been abroad
Employer Led Suspension
An employer will usually only be able to prevent an employee from attending work if they have a contractual right to do so. Any suspension which is not underpinned by a contractual right will normally constitute a breach of contract.
In cases of Coronavirus or suspected Coronavirus, it is likely that your duties under the Health and Safety at Work Act 1974 when it comes to protecting your workforce will be greater than the risk of any breach of contract and where an employer has reasonable cause to suspend they may be able to do so.
Any suspension at your choice will need to be on full pay.
Suspensions must not be carried out in a discriminatory way.
Staff returning from abroad
An employer cannot force an employee to self-isolate or stay away from work unless they have come into contact with someone with the virus or, have travelled from or through a high risk country.
If you wish to prevent someone from attending work following a trip abroad you should advise them to take telephone or online advice from the 111 service and pay them normal pay unless and until they are told to self-isolate. If the employee is not advised to self-isolate but you still want them to refrain from work you will need to pay them full pay.
Employees who refuse to come to work and Dependant Leave
Employees are only required to stay away from work if advised to by 111 or a medical professional.
If an employee chooses not to come into work in the absence of medical advice there is no legislation in place which requires you to pay them. Each case should however, be considered on its own merits and a non-discriminatory approach to pay should be taken.
Where an employee seeks time away from work to look after dependants, employers should follow their own internal policies on dependants leave. Dependants leave does not attract an automatic right to pay. Employees who are concerned about pay could take annual leave.
On 16th March, the government made clear its view that those who can homework should do so and employers are encouraged to facilitate this where the can.
If you are able to accommodate home working and you do not currently have a policy in place to deal with this, we would recommend that you implement Howarths’ homeworking policy which has been uploaded to your Client Portal.
Business closure and lost work
If you are required or advised to close your business or if you experience a temporary downturn in work this will result in a lay off situation with your staff. Unless you have a contractual right to lay off, or can get your employees’ consent, any lay off will need to be on full pay. If the reduction in work persists this may, in the worst cases lead to redundancies. There is government guidance regarding financial help for businesses on the gov.uk website.
Employers are able to require that employees take annual leave during closures or quiet periods but you must ensure that you give them the required minimum notice of twice as long as the amount of leave that you want them to take.
Visitors to the Workplace
According to gov.uk if someone with Coronavirus has recently attended your workplace, there is no requirement to close your business. Employers are advised to contact the Health Protection Team for further advice in this situation.
Employers are recommended to take reasonable steps to adhere to their obligations under the Health and Safety at Work Act 1974 and internal decisions regarding measures which can be implemented to monitor and address the spread of Coronavirus in the workplace should be taken.
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