Acas advice for employers during the Coronavirus pandemic
The COVID-19 pandemic is continually changing and government and Acas advice for employers is being updated as the situation develops. Many employers are putting in place processes and policies to plan for what now appears to be the inevitable disruption caused by coronavirus. Whilst actions an employer should be taking will depend, to some extent, upon the nature of the workplace and the work carried out, in our first coronavirus related blog we have set out some of the common questions employers are posing and, we hope, some answers to help manage the challenging circumstances we all find ourselves in.
What are the Statutory Sick Pay (SSP) rules and changes made by government to those rules for self-isolation purposes?
In order to qualify for SSP an employee must be absent from work due to incapacity. Where an employee has not either been diagnosed with coronavirus or exhibited symptoms, then it is unlikely that their absence will meet the definition of day of incapacity.
The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 have been made and came into force last week. SSP will be available to anyone isolating themselves from other people in such a manner as to prevent infection or contamination with coronavirus, in accordance with guidance published by Public Health England, NHS Scotland or Public Health Wales.
Anticipated Regulations providing that SSP will be payable from day 1 (not day 4), and allowing employers to reclaim the cost from the government, have not yet been published
Employees may have been told to self-isolate by Public Health officials or their GP. If this is the case, they will be deemed incapable under the new rules for SSP. They will therefore be entitled to SSP, or any contractual sick pay which may apply in this scenario.
What if employees are off sick or have been advised to self-isolate with symptoms of coronavirus?
Sick employees will be incapable of work due to illness. They qualify for SSP and are likely to qualify as sick or incapacitated under contractual sick pay provisions. Employers should treat them as they would any sick employee.
Employees may have been told to self-isolate by Public Health officials or their GP. If this is the case, they will be deemed incapable under the new rules for SSP. They will therefore be entitled to SSP, or any contractual sick pay if they are sick during their isolation.
What if employees are refusing to attend work due to fears about coronavirus?
If it is possible for employees can work from home, this will hopefully resolve the issue. If not, the employer would need to consider the current public health advice, the specific reason that the employee is concerned about attending work and whether it would be discriminatory to refuse home working, take disciplinary action, or withhold pay in light of the employee’s refusal.
We would recommend that employer policies and procedures are consulted and appropriate advice taken.
What if an employer wants to send an employee home from work to self-isolate?
An employee’s right to pay where their employer sends them home from work will depend upon the precise circumstances of that decision. Again, if the employee can work from home then they will continue to be entitled to their normal rate of pay.
Where an employee is suspended on health and safety grounds which does not fall within the government’s health and safety advice regarding self-isolation, they will likely be entitled to receive full pay and benefits.
Where an employer is considering suspension because an employee falls within the circumstances in which public health advice is to self-isolate then the position in terms of pay may be different. In those circumstances, an employer may instruct the employee to go home and seek medical advice via 111. With regards to pay, the employer should pay SSP or, if they are sick during their isolation, any contractual sick pay.
Can holiday be used by employees to cover any periods of absence due to coronavirus?
Employees may wish to take annual leave where they would otherwise receive SSP or no pay. They are allowed to do so but employers cannot compel them to.
For those employees who are not on sick leave, employers can instructed them to take statutory annual leave provided that the required level of notice is given.
Should I cancel work travel?
Employers should undertake risk assessments for any work travel. Many employers have cancelled all non-essential work travel for a limited time, to be kept under review. Risks will depend on the mode of transport, destination and purpose of the travel and all employers will have to undertake their own risk assessments in conjunction with reviewing the most up to date Government advice. Employers should communicate any changes in policy to employees and keep them updated. It also may not be possible in the case of overseas travel where countries have closed borders.
Can employers require employees to work from home?
If there is already an established requirement to work from home or a mobility clause that allows for the employer to request employees to work away from the workplace where appropriate, then there is unlikely to be an issue in applying that obligation in an effort to contain the spread of coronavirus. Where there is not such a provision, with such a business continuity issue as the coronavirus pandemic and where the government has encouraged citizens to work from home where possible, it is likely that an instruction to work from home would be a reasonable and lawful one.
Where home working is being newly introduced, or expanded, the employer should ensure that the health and safety implications have been considered (including health and safety risk assessments) and that the necessary infrastructure is in place. What is specifically required for each employee will depend on the job, the duration of home working and what specialist equipment may be needed.
A key area to consider is IT infrastructure. If providing access to systems for remote working, employers should consider whether they have appropriate “bring your own device” policies to protect their data and systems when being accessed via employees’ own devices. More generally, confidentiality, IT and data privacy policies and security systems should be reviewed to ensure that working outside of the office does not expose any business data, including the personal data of employees, customers and clients, to threat.
What happens if schools close and employees request to work from home due to childcare issues?
Normally, it would not be appropriate for an employee to work from home while also providing childcare. However, as the coronavirus outbreak escalates, employers may need to take a pragmatic approach. If all schools and nurseries close, the majority of parents in the workplace will face this issue and putting a blanket ban on working from home while also looking after children may preclude a large proportion of the workforce from performing any duties. In these unprecedented circumstances, employers may be prepared to take a more relaxed and flexible approach to homeworking and allow employees to work around their childcare responsibilities.
Employees with younger children who require constant attention may not be able to work at all while responsible for looking after those children. However, they may be able to split the childcare with the other parent, so that both parents are able to, at least, continue working part-time. Employees in these circumstances may assert their right to time off to care for a dependant. Time off in these circumstances is unpaid, unless there is a contractual right to pay. Given that school closures could last a relatively long time, it is likely that many employees who consider that they can undertake some work while providing childcare would prefer to do so (rather than assert their statutory right to time off) if the employer is willing to allow them to work flexibly.
Should I be taking any other steps?
As indicated above, employers are under a duty to ensure that employees are provided with a safe environment in which to work. Places of work continue to operate with employees in attendance and are likely to continue to do so during any potential period of lockdown. It would be advisable for employers to ensure that where possible:
• Employees and visitors are briefed and reminded of the government recommended sanitization procedures (hand washing etc).
• Employees and visitors are reminded of the need to self-isolate if they are suffering from symptoms of coronavirus.
• Handshaking is avoided and, for example, elbow tapping is adopted as an alternative.
• Places of work are cleaned more frequently with recommended anti-bacterial products.
Here are some handy links that employers can refer to when considering steps to take for coronavirus:
World Health Organisation guide- Here.
Acas guide– Here.
Public Health England guide- Here.
In our next blog, we will deal with some of the challenges faced by employers who are looking to conserve costs without losing staff and the options available to them.
If you have any questions about these issues or any other employment/HR related queries, please do not hesitate to contact the Employment Team here at Kemp Little.
Find all our Covi-19 related advice here.
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Justin Terry is an employment managing associate
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