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  • Minhaz Moosa

Coronavirus (COVID-19) - Employment FAQs

Updated: May 12


One of our workers has been confirmed as having the virus, should we close the workplace?


Official guidance says no for now; there are no restrictions or special control measures while waiting for laboratory test results and the local Public Health England (PHE) health protection team will come in to do a risk assessment. The workplace could require a deep clean in response, but they will advise on this and whether the closure is necessary. In the meantime, there is no need to close or to send another staff home.

Again, businesses should be mindful of anyone who may be more vulnerable due to age, pregnancy or a pre-existing condition and consider flexible arrangements for them during this time.


What happens if an employee contracts coronavirus? Do they still get full pay or sick pay?


If an employee contracts coronavirus, this should be treated in the same way as any other sickness absence in terms of payment. If you normally only pay statutory sick pay (SSP) during sickness absence, then this is what the employee should receive subject to meeting the qualifying criteria. You may wish to apply some flexibility if the employee has contracted the virus because they were on a business trip and consider increasing payment from SSP.

In these cases, your local Public Health England (PHE) health protection team will get in touch to discuss the case and advise on any action or precautions to take.


What if an employee has been told by a medical professional to self-isolate?


If an employee needs to self-quarantine (on the advice of NHS 111 or a doctor) the Government has announced new measures that mean they are entitled to Statutory Sick Pay (SSP) from day one. This includes individuals who may be a carrier of COVID-19 but may not have symptoms, and will also apply to people caring for those in the same household who display COVID-19 symptoms and have been told to self-isolate. It is good practice for employers to treat it as sick leave and follow their usual sick pay policy (or agree for the time to be taken as holiday). You could also advise employees to work from home if possible. Treating the employee as being on paid sick leave or as working from home is advisable and justified. It makes sense, otherwise, concerns about lost pay could lead to potentially infected people coming into work.


The recommendation is that employers that offer contractual sick pay should provide this if a member of staff is asked to self-isolate by a medical professional even if they have no symptoms. Alternative options to providing sick pay are to allow people who are asked to self-isolate to work from home wherever possible and continue to pay as normal.

Remembering that both employers and employees have general implied duties to look after all employees’ health and safety, this duty must include complying with self-isolation advice, otherwise, workplace colleagues could be exposed to infection.


What happens if an employee is worried (due to caring responsibilities for example) and wants to self isolate?


Individuals and their employer have a contract. If an employee is choosing to remove their services and has no confirmed sickness, then they are effectively withdrawing their services from their employer. The employer would be under no obligation to pay in this case. In employment contracts, there are implied terms that employees should follow their employer’s reasonable instructions. If employees refuse to perform these tasks, then they are in breach of contract. It will depend on the precise circumstances but there may be grounds for following normal absence management processes.

It boils down to what is reasonable. Are the employee's actions reasonable dependent on the degree of risk? And what about that individual – are they more vulnerable due to an existing health condition, age, pregnancy, mental health condition, caring responsibility etc? Listen to their concerns and try to come to an agreement e.g. working from home. If working from home isn't an option, they may be able to arrange with their employer to take the time off as holiday or unpaid leave but their employer does not have to agree to this.

Remember that this is an exceptional event that requires both employers and employees to exercise caution and to take reasonable steps to prevent the risk and spread of the virus. Alongside employers' statutory duty of care for people’s health and safety and to provide a safe place to work, there's also a strong moral responsibility to ensure that employees feel safe and secure in their employment and so you should take people’s concerns seriously and continue to communicate.


Some of my employees are parents and their child's school has been closed, with children being sent home to self-isolate. Are they entitled to time off and will it be paid?


In this situation, if the employee can work from home in some capacity then they would be paid as usual.

Employees may choose to take this time off as holiday instead of in which case normal annual leave processes and pay apply.

If an employee is unable to work from home, they could be granted unpaid emergency time off or unpaid parental leave. Strictly speaking, time off for dependants is only meant to cover a period of a few days while parents find alternative childcare arrangements, but employers should be flexible where possible in this situation.

If the affected school has a confirmed case of COVID-19, then it would be advisable for the parent employee to self-isolate. Again, if they can work from home they would be entitled to their normal pay during this time. If they cannot work from home, the new measures announced by the Government mean they are entitled to Statutory Sick Pay (SSP) from day one. This includes individuals who may be a carrier of COVID-19 but may not have symptoms. It is good practice for employers to treat it as sick leave and follow their usual sick pay policy (or agree for the time to be taken as a holiday).

If the decision is made to close schools for a longer period (e.g. a couple of months) then businesses will have to deal with this challenge. Many office workers could work from home in some capacity (in which case they can work and be paid as usual) but it’s unlikely that businesses would be able to offer full pay to staff for that amount of time, especially if the business is being impacted by the virus (e.g. reduced sales/visitors, etc). Employers need to start thinking now about how they might respond; could there be a middle ground between full and statutory sick pay? Could employees be encouraged to take annual leave for part of the time? The Government may also need to consider some kind of compensation pot to support businesses in this eventuality.

If your operations are severely affected and employees need to take leave, consider introducing a voluntary special leave policy on a temporary basis where individuals can opt to take paid or unpaid leave. Be mindful that there could be some employees who are willing to take additional time off and welcome a break, but others may struggle financially if they lose pay. Consider offering a shorter working week or other flexible resourcing arrangements and communicate the business reasons to employees. You may wish to consider short-time and lay-off working arrangements (more information on this is available on the Gov.UK website).


Do employees need a medical certificate?


Medical evidence is not required for the first seven days of sickness (according to the law), ie employees can currently self-certify those the first seven days. After seven days, it is up to the employer to decide what evidence (if any) they require from the employee. This does not need to be a fit note (Med 3 form) issued by a GP or other doctor.

In the coming weeks, the Government is planning to introduce a temporary alternative to the current fit note, meaning those in self-isolation will be able to obtain notification via NHS 111 as evidence.



What are the differences between medical suspension, sickness absence and self-isolation?


Most employers should be able to implement sensible plans to respond to the coronavirus (COVID-19) threat assisted by open staff communication and co-operation. Employees with potential or actual exposure should be following medical advice from their GP by telephone or NHS 111 leading to time at home either on working from home arrangement, special paid leave or contractual or statutory sick pay.

In some cases, there may be a lack of consensus, for example, employees who refuse to self-isolate after medical advice to do so. In these cases, the legal position may need to be explored further.


Suspension on medical grounds

Suspension arises when an employer imposes the decision to send an employee home from work, usually on full pay. Most suspensions occur when employees are being investigated for misconduct (often as part of a disciplinary process allowing an investigation to take place) and more unusually for medical health or safety reasons.

The specific statutory meaning of suspension on medical grounds refers to legislation giving employers the right to suspend employees on full pay if their health and safety are in danger, for example from certain substances which are hazardous to health including radioactive substances, and certain chemicals and lead carrying poisoning risks. Employees are suspended for their own protection. This specific type of suspension does not cover the coronavirus (COVID-19) situation, although the legislation could be amended so that it does.

The second meaning of suspension on medical grounds is a generic reference to an employer’s decision to suspend employees for medically related reasons to protect other staff. This type of suspension can potentially apply in the coronavirus (COVID-19) situation. If an employer chooses to suspend employees for a brief period, then as long as this is on full pay, the suspension is likely to be permissible (although strictly speaking it is not a statutory ‘medical suspension’).

The employer’s ability to suspend an employee in the coronavirus (COVID-19) context is primarily contractual (for example staff refusing to accept medical advice to self-isolate). Pre-existing standard clauses in contracts of employment or disciplinary policies are unlikely to expressly cover the coronavirus (COVID-19) situation.

However, there is an implied contractual duty to ensure the health and safety of employees. Instructing an employee not to attend work on full pay is likely to be deemed reasonable if there are rational grounds such as trying to prevent the spread of the virus to non-infected employees to honour legal obligations to them.

Assumptions that employees should be suspended because they may have the virus solely on the basis of ethnic or racial background would be discriminatory and a breach by the employer of the implied term of trust and confidence.


Sickness absence

Broadly speaking, sickness absence from work is an absence that is attributed to sickness by the employee and accepted as such by the employer. In the current coronavirus (COVID-19)context it appears that sickness absence will cover employees:

who test positive for the virus; and those with potential virus symptoms; and those who self-isolate because they are given a written notice issued by a GP or by NHS 111.

Employees who have no symptoms and self-isolate without medical advice or without the employer’s consent are unlikely to be on sick leave, depending on the circumstances.


Self-isolation

Self-isolation means staying at home and avoiding contact with other people. Employees with symptoms, those who have been in close contact with a coronavirus-infected person in the UK, or who have travelled to an affected area abroad may need to do this for 14 days to limit infection.

The term self-isolation would also cover those doing so as a precaution following more distant contact with an infected person.

Statutory sick pay (SSP) is payable to those with symptoms or who self-isolate on medical advice. Following emergency government legislation, this should now start on day one in coronavirus (COVID-19) cases rather than after the usual first three days. The government are yet to confirm when this change will come into force.

Employees who choose to self-isolate without written medical notice or symptoms are not entitled to statutory sick pay, although the government may review this.


What happens if an employer decides to send employees home as a precaution?


Provided this is feasible from an operational point of view, it is certainly an option in order to maintain productivity and pay.

If an employer decides to send a non-symptomatic employee home as a precautionary measure because they are worried that the employee may have been exposed to the virus, this will be on full pay. In this case, employees are following the reasonable instruction of the employer and should get their normal pay.

Some employment contracts contain a right to suspend employees briefly without pay. However, this right usually only applies in limited circumstances and a suspected illness is unlikely to be covered. Unless there is a clear contractual right to suspend employees without pay or benefits, then employers who insist on this could potentially face claims for breach of contract, unlawful deduction of wages and constructive unfair dismissal.

This will not be a medical suspension under the statutory scheme (which would attract medical suspension pay) as this has a narrow definition which does not cover this type of situation.

Where possible employees could be asked to work remotely from their home.

In this case, you should consider the health and safety aspects including whether the employee has an appropriate area at home to do work and any insurance implications.


What should we do with employees who have been travelling? Can we prevent them from coming into work?


Employees who have been to the affected areas in the past 14 days need to stay home and avoid contact with other people and advise the NHS via 111, even if they do not have symptoms.

Employees who have been to affected areas outside of Wuhan and Hubei in the last 14 days and have a cough, fever or shortness of breath should stay home and advise 111.

Employees returning from other areas on a separate Government list including Japan and Thailand only need to self-isolate if they have symptoms.

If an employee who has been to the affected areas tries to attend work, they should be told to go home and follow the Government guidance in order to protect the health and safety of others.

You can require non-symptomatic returners from these areas to stay at home but this will be your own decision and they will receive full pay.



What if people might be ill but still go into work as they are worried about not being paid?


We know this is already the case for many people with a normal cold but the Coronavirus is different and we need businesses and employees to take it seriously. That means employees and employers need to work together to protect the health and safety of everyone. If someone is sick or has been exposed in some way, employers should look at awarding the time as full-paid sick leave to ensure that person has time to recover and the rest of the workforce are protected.

Employers have a care of duty to the whole workforce and, where possible, should be generous to encourage people to stay home.



What if someone becomes unwell while they're at work?


The government advice if someone becomes unwell while at work and they have travelled to China or other affected countries, is to remove that person to an area which is at least 2 metres away from other people and, if possible, find a room or area where they can be isolated behind a closed door. If possible, open a window for ventilation.

The person who is unwell should call NHS 111 from their mobile (or 999 if it’s an emergency) and explain which country they have returned from in the last 14 days and outline their current symptoms.

Whilst they wait for advice from NHS 111 or for an ambulance to arrive, they should remain at least 2 metres away from other people. They should avoid touching people, surfaces and objects. They should cover their mouth and nose with a disposable tissue when they cough or sneeze and put the tissue in a bag or pocket then throw the tissue in the bin. If they don’t have any tissues available, they should cough and sneeze into the crook of their elbow.

If they need to go to the bathroom whilst waiting for medical assistance, they should use a separate bathroom if available.


What should businesses do to help employees work from home?


To encourage remote working employers should:

Facilitate and make available flexible working practices for all employees. Investigate ways of harnessing the use of technology to limit the amount of face-to-face contact. For example, video conferencing to facilitate remote meetings. For customer-facing organisations, consider introducing or enhancing the use of self-serve facilities.



I've heard about short-term working and lay-offs? What are they and should I implement them?


Lay-offs and short-time working are relatively rarely used legal provisions which cover situations where there is not enough work for employees to do.

Lay-offs: employer asks an employee to stay at home and not attend work or be paid for a temporary period.

Short-time working: the employer requires their employee to work less than their regular contractual hours, for example, a three-day week.

Employers can only implement lay-offs or short-time working if there are express, correctly drafted clauses in their contracts. Employees affected may be able to claim redundancy pay. Employers can also implement lay-offs or short-time working if the employer gets consent to a period of lay-off or short-time working at the relevant time. Employees may agree to this if they feel their only alternative may be redundancy.

Employees with at least one month’s service who fall within the criteria will be entitled to a small fixed statutory guarantee payment to partially compensate them for the reduction in salary. Employees who are affected for longer periods may be entitled to redundancy pay. The employees must resign with written notice of their intention to claim this. Employers can avoid redundancies if they guarantee employees 13 consecutive weeks of work within four weeks of receiving the employee’s notice.

In the current situation, if workplaces are forced to close to prevent the spread of the coronavirus (COVID-19) virus, employers will still have to pay employees in most cases. Lay-offs and short-time working may give employers greater flexibility and savings on salaries during a temporary closure if the required clauses are already in the employees’ contracts or if they consent subsequently. Clauses should reserve the right to reduce pay according to the reduction of work. Obviously, such plans are likely to have a detrimental effect on morale and this impact should be considered alongside other potential options.


Some staff travel a lot for work: can they refuse in the current circumstances?


Employers should be taking the lead here and looking carefully at international travel and making a decision on what is appropriate and what potentially poses a risk, cancelling all but essential travel, especially to high-risk areas. Consider whether meetings can be done via video conferencing for instance. If an individual is concerned, they should speak to their line manager or HR department to discuss options.


Can we stop staff taking holiday to affected areas?


What your employees do outside of working hours is largely out of your control. You can encourage employees to consider whether, from their own health perspective, travel to those areas is the best thing to do and that, if they do decide to travel, they should take all necessary health precautions. Whilst you can cancel a period of pre-authorised annual leave by giving the legally required amount of notice, this decision should not be taken lightly and is not advisable from an employee relations point of view as it could result in an employee losing a lot of money and potentially missing an important family event eg a wedding or funeral taking place overseas.

Employers should also discuss the likelihood of post-visit isolation and the impact of that on the individual and the wider working team.



Can we ask staff to disclose where they have gone or are planning to go on holiday?


Employers can ask staff to voluntarily disclose where they have gone or are planning to go on holiday. In most situations, it is hoped employees would voluntarily disclose the destination followed by a rational dialogue about travel to a high-risk area.

If an employee refuses to disclose where they are going, the only way employers could force an employee to reveal their travel plans would be by a threat of dismissal or disciplinary proceedings for their failure to reveal the destination. This is unlikely to be justified. Employees have a human right to a private and family life, both in and out of the workplace.

An employee who sticks to a pre-arranged holiday and refuses to disclose the destination will presumably lead to the employer’s decision that they have reasonable grounds to believe the employee was travelling to an affected or high-risk area. Rather than trying to force the employee to confirm their destination, the employer can request the employee to self-isolate on their return for 14 days and follow official advice to call their GP or NHS 111 with any symptoms of the virus.

Whether this period of time would need to be paid depends on the circumstances. If the employee returns with symptoms or receives medical advice to self isolate then sick pay will be payable in the usual way.

Similarly, if the employer requests the employee to self-isolate as a precautionary measure it is prudent for the employer to pay them, although this may seem unfair when the employer cautioned the employee against taking the travel risk in the first place. However, the employer’s highest duty is to protect the health and safety of the workforce as a whole.



Can you deny or cancel annual leave if an employee tells you that they are planning to go to a high-risk area?


The ideal way to deal with proposed personal travel is for employees and employers to openly discuss travel plans and follow the latest government guidance on high-risk areas.

Employers can cancel annual leave that has already been authorised, so long as the minimum notice is provided. The general notice period for taking leave is a period at least twice as long as the amount of leave the employee has requested (unless agreed otherwise). For example, employers need to give four weeks’ notice when cancelling a two-week holiday.

If the employee has already booked a holiday, based on leave which has already been approved, then the employer is causing financial loss to the employee. The safest course of action is to consider offering compensation or allow the employee to take their holiday but self-isolate on return.

Employers who ban private travel to high-risk areas such as parts of China, Iran and Italy may disproportionately affect certain groups. This could be indirect race discrimination if it affects more staff of certain ethnicity than others. However, employers may decide that their duty to protect staff is worth taking the risk of a potential discrimination claim. Employers can defend indirectly (but not direct) discrimination claims using the ‘proportionate means of achieving a legitimate aim’ defence. The fairness of a travel ban for employees depends on the destination, the level of risk, the employee’s reason for wishing to travel and the overall situation at the time. An absolute ban may not be reasonable if the employee can self-isolate after returning.

If employers target certain staff specifically and request them not to travel or come to work, this could lead to direct race discrimination claims. Any request to avoid travel and not attend work should apply to all staff regardless of nationality or ethnicity and be linked to potential exposure to the virus, not racial origins.



If leave is cancelled due to the holiday destination imposing travel restrictions, how should the organisation handle rebooking leave?


If the holiday destination imposes travel restrictions, employees may wish to cancel or postpone their booked time off work. Such requests should be granted where possible and employers should be cooperative about employees seeking to rebook leave. Employees should also carefully investigate travel insurance policies as some cover travel affected by coronavirus.




My employer has asked me to isolate at home: will I be paid?


If you are on a standard employment contract the answer is yes. If your employer is asking you to stay home, they have taken that decision and you should still be paid. Many office workers will be able to work from home though, so it becomes a usual working day.

If you cannot work from home (eg you’re a factory worker) it’s more challenging but as it’s at the employer’s request they should still pay you.

Some employment contracts contain a right to suspend briefly without pay but this is only in limited circumstances and is highly unlikely to apply to a ‘suspected illness’.

Unless there is a clear contractual right to suspend without pay then employers who insist upon this could face claims for breach of contract and unlawful deduction of wages.

Keep informed of the latest advice be visiting the Gov.UK latest information and advice pages.



I'm back from an affected area. I feel fine but I'm stuck at home on government advice, will I be paid?


If you can work from home, and your employer can help you to do that by providing relevant equipment then you can carry on working and being paid as normal.

However, if it’s not possible for you to work at home (because you work in a factory or warehouse for example) and you have been told by a medical professional (NHS 111 or a doctor) to self-isolate the advice from the Government is that employees or workers are entitled to Statutory Sick Pay. This includes individuals who may be a carrier of COVID-19 who may not have symptoms.

Keep informed of the latest advice be visiting the Gov.UK latest information and advice pages.


I'm on a zero-hours contract. Will I get paid if I'm told to self-isolate?


Some casual workers and workers on zero-hours contracts are likely to receive at least statutory sick pay. Some other zero-hours workers currently will not get paid if they are told to self-isolate unless the employer pays them voluntarily.

Statutory sick pay (SSP) is only paid to those earning a certain average amount. Zero-hours contract workers will therefore only get SSP if they earn more than an average of £118 a week before tax over an eight-week period.

Historically, SSP was not paid for the first three days of illness. The government has confirmed that SSP will be paid from day one, as part of its emergency coronavirus legislation (although we are still awaiting details of this). It is currently paid at a rate of up to £94.25 a week for up to 28 weeks, increasing to £95.85 a week from April. The new emergency coronavirus legislation paying SSP during the first three days of absence will amount to around £40 per employee affected.

Those on zero-hours contracts who do not meet the minimum earning requirements will still not be eligible for SSP at all unless further legislation is introduced.

The self-employed and freelancers are unlikely to be entitled to statutory sick pay. Some may have income protection insurance policies for accident, illness and unemployment which may cover wages lost due to coronavirus infection.




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