With the World Health Organisation (WHO) raising its global risk assessment of COVID-19 from high to very high and the government stating that up to a fifth of the workforce may be off sick during the peak of a COVID-19 epidemic in the UK, many employers are already considering what their obligations are to employees and how they should be planning for what may lie ahead.
At this stage, Public Health England’s (PHE) strategy is based on self-isolation for particular groups of people and the provision of guidance on hygiene. The Government has also announced social distancing measures, such as employees working from home wherever possible, in order to limit the spread of COVID-19.
Current guidance is that if an individual lives alone and has symptoms of COVID-19, however mild, they should stay at home for 7 days from when their symptoms started. This is what ‘self-isolation’ refers to.
If an individual lives with others and they, or another member of the household, has symptoms of COVID-19, then all household members must stay at home and not leave the house for 14 days. The 14-day period starts from the day when the first person in the house became ill.
In some cases, employees may be able to work from home whilst self-isolating, but for others, this is simply not possible – for example, in front facing services such as healthcare, hospitality, retail and the emergency services.
PHE guidance on who should self-isolate is clear, but only advisory. Employers, in light of their duty to protect the health of their workforce, should consider introducing rules or issuing instructions requiring those employees who fall within the categories identified by PHE, to remain at home. If an employee refuses to comply with such an order, they could be in breach of their duty of trust and confidence.
Employers may also wish to enforce instructions to follow COVID-19 hygiene rules, so that, for example, if an employer requires employees to follow PHE’s guidance regarding washing hands or coughing into the crook of an arm or a tissue, and the employee refuses to comply, it may be reasonable for the employer to take disciplinary action against the employee.
But what about those employees who are not in one of the specified groups but still don’t want to attend work?
The PHE guidance in this case is to listen to the concerns of the employee. Employers should consider in detail the needs of those employees who have particular cause for concern about the risk of COVID-19. For example, employees identified by the World Health Organisation as being at higher risk of developing severe COVID-19 (i.e. over 60s, or those with underlying conditions such as cardiovascular disease, respiratory condition or diabetes). As well as a general obligation to provide a safe working environment, employers may have a duty to make reasonable adjustments to working arrangements if that employee has a disability which puts them more at risk. Considerations should be given to flexible working, the taking of annual leave or periods of unpaid leave.
Employees entitlement to sick pay
The Spring budget has provided some much needed clarity around entitlement to Statutory Sick Pay for employees off work due to COVID-19.
The forthcoming COVID-19 Bill will temporarily allow SSP to be paid from the first day of sickness absence, rather than the fourth day, for people who have COVID-19 or have to self‑isolate in accordance with Government guidelines. The Spring Budget has also confirmed that the Government would be temporarily extending SSP to cover:
- individuals who are unable to work because they have been advised to self-isolate, even if they do not currently display symptoms; and
- people living within the same household as individuals who display COVID-19 symptoms and have been told to self-isolate.
Employers should confirm whether employees’ contracts include provisions for company sick pay, and the circumstances in which this should be paid. Failure to pay contractual sick pay where it is due could result in unlawful deduction from wages or constructive dismissal claims.
If an employee is self-isolating due to their own symptoms or symptoms of another individual in their household, then they will be entitled to SSP. Company sick pay should be paid if this is a term of the employee’s contract.
Current PHE guidance does not state that anyone living with or caring for individuals who are high-risk but do not actually have any symptoms of COVID-19 should self-isolate, so under the current position these individuals would not be covered by SSP rules.
However, as guidance is changing day to day, it is imperative that employers stay up to date with the current guidance on SSP and act accordingly.
The Government has also strongly suggested that employers use their discretion around the need for medical evidence for a period of absence where an employee is advised to stay at home due to suspected COVID-19, in accordance with the public health advice being issued by the Government.
There will be help for employers with up to 250 employees as the Government have confirmed that they will meet the cost of providing statutory sick pay for up to 14 days for COVID-19 related absence.
Impact of school closures
Employees have the right to reasonable unpaid time off to care for a dependent in emergency situations, which should cover a short term closure of a school due to COVID-19.
Where absence management policies include trigger points for formal management action, there is a risk that employees may not stay at home when they are at risk or pose a risk to employees. Employers may, therefore, wish to consider whether to specify that a period of absence caused by COVID-19 infection, or self-isolation in accordance with PHE guidance, should be disregarded for trigger purposes. This will be particularly important for disabled employees with weaker immune systems who may be at greater risk.
Whilst this article is intended to provide general advice for employers on the situation as it is now, the picture is changing daily and employers should monitor the guidance from Public Health England carefully and seek legal advice before taking action.