As Coronavirus (Covid-19) has now been declared a pandemic by the World Health Organisation, this article attempts to supplement the guidance for employers and employees recently published by ACAS and highlight some additional considerations.
As is often the case much advice will be case specific and turn on the facts so this article is not intended as legal advice but rather a high level tour of the main concerns. This article is also not providing any medical advice.
Sick Pay and Self-Isolation
- If employees contract Covid-19 how much sick pay are they entitled to?
Normally, employees are only entitled to Statutory Sick Pay ('SSP') on the fourth day of any sickness absence. SSP begins on the fourth day after 3 'waiting days', after which it is potentially payable for up to 28 weeks.
The government has since announced their intention that SSP will instead be payable from day 1 of absence. This would have retrospective effect from 13 March 2020.
The government also announced during the budget that they intend to reimburse employers with up to 250 employees for SSP paid to employees in the first 14 days of any absence due to Covid-19. This would have retrospective effect from 14 March 2020.These changes were introduced by the Coronavirus Bill on 19 March 2020 which is not yet in force at the time of writing.
How much is SSP?
SSP is currently £94.25 per week less tax and National Insurance. From 6 April 2020, SSP is rising to £95.85 per week less tax and National Insurance.
- Are employees entitled to SSP if they self-isolate?
The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 have been made and came into force on 13 March 2020.
This Regulation amends the Statutory Sick Pay (General) Regulations 1982 and provide that SSP is now payable if someone is self-isolating to prevent infection or contamination with Covid-19 in accordance with guidance published by Public Health England.
This Regulation is provisionally in force for eight months but will be kept under review by the government.
- Are employees who are absent to look after a family member who is self-isolating entitled to SSP?
The government did indicate that SSP would be extended to cover employees who take time off work to care for someone in their household who was self-isolating or had symptoms of Covid-19.
This has not yet been legislated for and would only apply under the Regulation mention above if Public Health England guidance was amended to require them to self-isolate in such circumstances.
- Are employees entitled to Contractual Sick Pay if they self-isolate?
This will depend on the wording of the contract but it is likely that most contractual sick pay provisions would not extend to cover self-isolation if the individual was not actually diagnosed with Covid-19. Employers should seek independent legal advice if they are unsure.
Health and Safety
Employers should review their workplace to ensure there is good hygiene and consider carrying out risk assessments to identify any high risk groups of employee's.
Employers also have an implied duty to protect the health and safety of employees. In order to satisfy this duty employers should ensure they keep up to date with government advice and follow ACAS good practice:
- keep everyone updated on actions being taken to reduce risks of exposure in the workplace;
- make sure everyone's contact numbers and emergency contact details are up to date;
- make sure managers know how to spot symptoms of coronavirus and are clear on any relevant processes, and procedures in case someone in the workplace shows symptoms of the virus;
- make sure there are clean places to wash hands with hot water and soap, and encourage everyone to wash their hands regularly; and
- provide hand sanitiser and tissues for staff, and encourage them to use them.
Employers should be mindful of the possible breaches of this duty that may arise from:
- requiring an employee to travel to a high-risk area on a business trip (employers should in any event check that travel insurance will cover Covid-19 for any travel); or
- dissuading employees from self-isolating.
Employers may also wish to consider whether requiring employees to attend work-related events in the UK is necessary, such as networking or other large public events.
Employers may also consider their duty if an employee who may be suspected of having Covid-19 insists on coming to work. In such circumstances, the duty to protect the health and safety of its other employees may mean that the employer will want to keep that employee away from the workplace.
If there is no express right to suspend the employee then the employer may be able to suspend the employee on full pay as there is generally no duty on an employer to provide work.
Although suspending the employee might be possible it would be important to consider any possible discrimination and breach of other implied duties to that employee and employers should obtain independent legal advice in such circumstances.
Coronavirus Job Retention Scheme (Furlough Leave)
On 20 March 2020, the government announced the unprecedented Coronavirus Job Retention Scheme. The Scheme will apply to any employer, including charitable or non-profit organisations. Under the Scheme, employers can apply for a grant from HMRC to cover 80% of the wages of employees who are not working but kept on payroll and who would otherwise have been laid off or made redundant.
There is no limit on the funds set aside by the government for this Scheme but there is a limit of £2,500 per month (gross) on the 80% of salary. This Scheme will apply to everyone on PAYE system. The Scheme will be backdated to 1 March 2020 and initially be in force for 3 months but could be extended.
It has not yet been announced how earnings (and therefore the grant) will be calculated for those with zero-hours contracts.
The current government guidance on the Scheme provides that employers will need to designate affected employees as 'furloughed workers'. However, this change of status is subject to existing employment law and so the vast majority of employers will need to consult on this proposed change and obtain necessary consent.
No draft legislation has been proposed so limited information is available about how this will work. Employers should seek legal advice if unsure how to proceed.
Employers who have a contractual right to lay off employees (ceasing to provide work and pay for a period of time whilst not dismissing the employee) may see this as a temporary solution to a downturn in work resulting from Covid-19.
If an employer lays off an employee without the contractual right to do so then this would likely be a breach of the employment contract. Employers should seek independent legal advice before taking such action.
Employees already signed off with sickness or self-isolation cannot be laid off.
Employees laid off may be entitled to a statutory guarantee payment of £29.00 per day. This is increasing to £30.00 per day from 6 April 2020.
Working from home
Social Distancing Guidance strongly advises employees to work from home if they are:
- aged over 70;
- pregnant; or
- have a specified underlying health condition.
Generally guidance is also to try and stop unnecessary contact with others including working from home where possible. Employers should allow staff to work from home wherever possible and take extra steps with those employees who are in a vulnerable group.
In the circumstances it is unlikely employers can conduct normal risk assessments but efforts should be made to ensure employees have the right equipment and regular contact is maintained.
Employers may consider introducing a homeworking policy with employees if they do not already have one in place.
Also announced in the Coronavirus Bill was a new right for employees and workers to take emergency volunteer leave in blocks of two, three, or four weeks' statutory unpaid leave. The bill dictates that arrangements must be made to compensate emergency volunteers for loss of earnings they would not have suffered otherwise, travelling and subsistence.
This emergency leave applies only to those workers who have been granted an emergency volunteering certificate by an appropriate authority approving them as an emergency volunteer in health or social care. The right would not apply where the worker is employed by a small company of less than 10 employees.
The Bill also seeks to amend existing legislation to ensure the worker can return to their role after such leave and grant significant protection to any workers against suffering any detriment or being dismissed as a result of taking this leave, or the employer believing them likely to do so.
Employers should seek independent legal advice as to their obligations should they employ any workers who exercise this right.
Employees who have an underlying illness that means they are at a high risk of serious illness from Covid-19 may also be disabled for the purposes of the Equality Act 2010.
Employers must be mindful of their duty to make reasonable adjustments for disabled employees. In such circumstances and depending on the role and type of work, working from home may be a reasonable adjustment. In such circumstances employers should also consider any reasonable adjustment that might be necessary for an employee working from home with a disability.
Employers should seek medical advice from the employee's GP or occupational health, and from the employee themselves as to what reasonable adjustments should be made.
Our specialist employment law team provide expert advice to both employers and employees on a full range of employment matters. For more information contact us on 01603 693500 or email us using the 'Make an enquiry' form on our website.