The coronavirus has been in the headlines for weeks and the number of countries affected is only increasing. As Covid-19 has reached the shores of England, what should employers do to protect their staff?
What health and safety duties do employers have?
Employers have a duty to take reasonable care of its employees’ health and safety in the workplace. This obligation means that employers must ensure that the workplace is safe for employees to work in.
In the current coronavirus pandemic, we recommend employers:
- Send guidance to staff on the best ways to stop the spread of the virus
- Provide tissues and hand sanitisers for staff to use
- Monitor whether work-trips to areas hit by the virus should proceed
- Ensure that anyone who comes back from an infected area does not come into work if they are symptomatic
- Consider the safety issues of ‘high risk’ individuals such as the older people, those with underlying medical conditions and pregnant women
Employees stuck abroad – what should employers do?
If an employee on a work trip is stuck abroad then employers should consider whether employees can continue to work remotely and if so, they should be paid as normal. If working remotely is not a possibility then employers will need to consider whether to grant leave as: unpaid, sick leave or paid. This involves considering any contractual rights and policies that may be in place at the employer.
Employees returning from high-risk areas – what are the options?
Those returning from high-risk areas may have to self-isolate even if they are not symptomatic if the government guidance from Public Health England (PHE) or the Department for Health and Social Care states it.
Those returning from other areas who are symptomatic should also self-isolate. Employers should treat such employees as being off sick and pay according to their normal rules on sick pay.
Self-isolation – is this always necessary?
The most difficult category of employees are those returning from areas not categorised as high risk and who are not symptomatic.
It is a matter for each employer whether they ask employees to self-isolate or not in this situation. If the employer chooses to ask employees to stay at home for the 14-day incubation period, then the employer will need to consider what pay may be owed during this period. If the employee is able to work from home, then the employer will be able to pay as normal. If working from home is not an option, then, the employer will need to be aware that it could be liable to pay normal salary if the employee is well enough to work but the employer does not wish them to attend work.
Can employers stop employees from going abroad during the outbreak?
Employers must act reasonably in their dealings and if employees wish to travel to areas where flights are still being run as normal, it will be difficult to justify imposing a blanket travel ban. To do so will risk employees becoming secretive about their holiday plans and employers could also face adverse publicity and even claims as set out below. It is best to express the employer’s concerns and agree a strategy with the employee to minimise risks to them and other employees.
What if employees refuse to attend work due to worry over the risks?
Employers should be mindful of hysteria around this subject and should proceed with caution when faced by an employee refusing to attend work. It is advisable to discuss their concerns, reassure them on the measures being taken but ultimately to remind them that they could face disciplinary action if their continued refusal to attend work is unreasonable.
Legal implications of getting it wrong
Where an employer overacts or goes against the current guideline outlined by the PHE, it could face claims of constructive dismissal or even race discrimination (harassment and/or indirect discrimination and/or direct race discrimination).
Final thought…
Coronavirus does not have a cure and there is a lot of fear amongst the population as a whole. Employers should keep a close eye on government guidance and be prepared for staff taking time off to care for others in addition to themselves.
By Mini Setty, a partner in employment law at Langley Solicitors
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