Coronavirus – Guidance for employers

We do not provide any medical advice – guidance on this must be taken from the professionals.

What is it?

Covid-19 or coronavirus was declared a global health emergency by the World Health Organisation in 2020 having first been identified in Wuhan City, Hubei Province in China. Coronaviruses are a large family of virus that cause illness ranging from common colds to more severe diseases such as SARS and MERS. 

Coronaviruses are zoonotic which means they are transmitted between animals and people. It is not known how exactly this new strain is being transmitted but similar viruses spread through cough droplets. 

More information can be found here https://www.nhs.uk/conditions/coronavirus-covid-19/

The incubation period is between 2 and 14 days. This means that if a person remains symptom free 14 days after contact with someone with confirmed coronavirus, they have not been infected.

What signs might someone present with?

Respiratory symptoms: shortness of breath, cough, breathing difficulties and fever.

Secondary problems can then be triggered such as pneumonia, acute respiratory problems and kidney failure.

How is it spread?

From what we know about other coronaviruses, spread of COVID-19 is most likely to happen when there is close contact (within 2 metres or less) with an infected person. It is likely that the risk increases the longer someone has close contact with an infected person.

Respiratory secretions produced when an infected person coughs or sneezes containing the virus are most likely to be the main means of transmission.

There are 2 main routes by which people can spread COVID-19:

• infection can be spread to people who are nearby (within 2 metres) or possibly could be inhaled into the lungs.
• it is also possible that someone may become infected by touching a surface, object or the hand of an infected person that has been contaminated with respiratory secretions and then touching their own mouth, nose, or eyes (such as touching door knob or shaking hands then touching own face)

Our current understanding is that the virus doesn’t live on surfaces for longer than 72 hours.

There is currently little evidence that people who are without symptoms are infectious to others.

Source: https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19/guidance-for-employers-and-businesses-on-covid-19

Who is particularly vulnerable?

Those with already weakened immune systems are more vulnerable. This will include any workers with long term conditions like cancer, diabetes or existing lung problems and the oldest in the workplace.

How do we prevent the spread of infection?

There is currently no vaccine to prevent COVID-19. The best way to prevent infection is to avoid being exposed to the virus.

Public Health recommends following general cold and flu precautions which are:

• cover your mouth and nose with a tissue or your sleeve (not your hands) when you cough or sneeze. See Catch it, Bin it, Kill it
• put used tissues in the bin straight away
• wash your hands with soap and water often – use hand sanitiser gel if soap and water are not available. See hand washing guidance
• try to avoid close contact with people who are unwell
• clean and disinfect frequently touched objects and surfaces
• do not touch your eyes, nose or mouth if your hands are not clean

If anyone is worried about symptoms, please call NHS 111. Do not send anyone to the GP or other healthcare environment.

Further information is available on the PHE blog and NHS.UK.

Face masks for the general public are not recommended to protect from infection (see below), as there is no evidence of benefit from their use outside healthcare environments.

People who have returned from Hubei Province, including Wuhan, in the last 14 days should self-isolate whether they have symptoms or not. This includes avoiding attending work until 14 days after they left Hubei Province.

What is the risk in the UK?

As at 30 January 2020 the risk level in the UK was raised to moderate by the UK Government, and Public Health officials are working around the clock but the risk to individuals remains low. As of today there have been 15 confirmed cases in the UK.

Globally we have not yet reached pandemic levels which means the worldwide spread of the disease although with the spread to Korea and the Middle East and Italy, Austria etc we are close to this being declared.

The government publishes daily updates at 2pm: daily updates

We have staff travelling for work to affected regions – what do we do?

Foreign and Commonwealth Office (FCO) advice may be not to travel to certain places like China so check their advice regularly as to where the no-go areas are. FCO has also advised all UK nationals to leave China and may extend this to other places.

This is where the latest guidance is https://www.gov.uk/guidance/travel-advice-novel-coronavirus

This is likely to mean that business insurance will not cover someone travelling and you may not be able to guarantee levels of care or repatriation if someone did become unwell whilst abroad. For that reason you will want to put in place systems to capture anyone who might be thinking of booking a work trip to affected areas and make alternative plans.

The NHS advises any employee who has returned from certain regions in the last 14 days to self-isolate. That means staying indoors, avoiding contact with other people and advising the emergency services of their recent travel by telephoning the NHS 111 line, even if they do not have symptoms of the virus. Our understanding is they may be visited and tested by Public Health officials, with tests being sent to two laboratories for accuracy of readings.

If they have returned from other places like unaffected parts of China, Macao, Hong Kong, Thailand, Japan, Taiwan, Singapore or Malaysia in the last 14 days and they develop symptoms then they should self-isolate and advise the emergency services by telephoning the NHS 111 line. Our understanding is they will be visited and tested by Public Health officials as above.

You should risk assess any business trips and take steps to minimise risks:

• Is travel really necessary? You may determine that it isn’t, actually.
•  Are there other alternatives to travel? For example, you might  arrange video conferences.
• Can measures be taken to reduce the risk of the virus spreading? For example, you might agree up front with the people who are meeting that shaking hands will not be done as that is something that could spread the virus.

We have staff holidaying in the affected regions – what do we do?

If the person hasn’t travelled yet, you should advise them of the above protocols and suggest that they do not travel as per FCO guidance. We clearly cannot control what people choose to do but you should explain what the position might be when they get back/the consequences of their choices.

If they haven’t returned yet the same advice as above will apply. They may need to self-isolate on their return if they have any symptoms. See below for what the pay position will be.

Current advice to those who have been in Northern Italy is to self-isolate for a fortnight to try and reduce the risk of the spread of the virus even if they do not have symptoms. See below for what the pay position will be.

What if people feel fine, come into work and then become unwell?

At the first sign of them becoming unwell they should go home and self-isolate and call NHS 111. You may want to make arrangements, if it is practicable to have an isolation room where people can go and call from if they become unwell in work. My understanding is an ambulance will be sent and that person will be taken to one of two locations.

You will need to think about who they have come into contact with in the workplace and may need to advise those people to be hypervigilant for the next 14 days about their own symptoms although the risks are low. This might include notifying customers/clients and suppliers.

Government guidance is:

If the person has not been to specified areas in the last 14 days, then normal practice should continue.

If someone becomes unwell in the workplace and has travelled to China or other affected countries, the unwell person should be removed to an area which is at least 2 metres away from other people. If possible find a room or area where they can be isolated behind a closed door, such as a staff office. If it is possible to open a window, do so for ventilation.

The individual who is unwell should call NHS 111 from their mobile, or 999 if an emergency (if they are seriously ill or injured or their life is at risk) 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 an ambulance to arrive, they should remain at least 2 metres from other people. They should avoid touching people, surfaces and objects and be advised to 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.

For contacts of a suspected case in the workplace, no restrictions or special control measures are required while laboratory test results for COVID19 are awaited. In particular, there is no need to close the workplace or send other staff home at this point. Most possible cases turn out to be negative. Therefore, until the outcome of test results is known there is no action that the workplace needs to take.

Public Health will advise on any actions or precautions that should be taken including risk assessment.

What is our duty as employer? 

Employers have a duty to protect the health and safety of all their employees and to provide a safe place to work but there is also a strong moral responsibility to ensure employers feel safe and secure.

You may face a conflict between the need to keep genuinely sick employees away from the workplace and the need to prevent unauthorised absence. However, if there is a pandemic, concerns about whether someone is a malingerer should give way to the very real need to prevent the spread of the disease. 

What should we do now?

You should be communicating that the risks are low and there is no need to panic but understanding some people may have real concerns that need to be listened to.

You should be communicating with your employees about the need to take precautions, avoiding travel to the affected areas and/or coming into contact with infected or potentially infected people. The important message to get to people is the need to self-isolate if they think they have the virus and the need to speak to the NHS on 111.

Employers should send round an email/guidance encouraging employees to be extra-vigilant with washing their hands, using and disposing of tissues etc to circulate the information the NHS are suggesting is important.

If you have the capacity to do so, it may be worth designating an ‘isolation room’ where an employee who feels ill can go and sit away from others and privately call ‘111’ before taking any further necessary action.

How do we reassure staff who may be worried?

We can reassure them that the risk in the UK is currently low and there is no need for panic.

Explain you insist that those who are unwell stay away from work for reasons other than limiting the spread of the virus within the work place such as making sure they are fit to be in work and not making anyone work when they are unwell.

The hardest thing to manage is likely to be employee fear, particularly if there is public consensus that staying at home is safest. Employees should be required to attend work as normal, unless there is a particular risk posed in that workplace or in getting to and from that workplace. Employers should take their cue from the government and generally implement their common sense. 

During a pandemic, it would be good practice to allow home working requests or consider the flexibility to commute outside of rush hour particularly for those employees who are pregnant or who have weakened immune systems.

Government guidance is that there is no increase in risk in handling post/freight from affected areas and that existing risk assessments/systems of work should be followed.

See the government guidance at https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19/guidance-for-employers-and-businesses-on-covid-19 as regards cleaning protocols and disposal of rubbish.

What if employees cannot come into the workplace?

Your organisation should already have business continuity plans in place for what happens if significant numbers of staff are advised to stay at home – if you haven’t, start making those plans. This might include:

• identifying priorities and those things that could be put on hold or temporarily stood down to enable focus on key priorities
• cross training staff to work on different aspects of your work so that people can fill in for colleagues in an emergency. 

How do we treat presenteeism?

Workplaces that have a culture of encouraging employees to struggle in when they feel sick will need to change their approach in the face of a potential pandemic; indeed, not to do so could expose them to claims for breach of contract from other employees who could be exposed to harm, if someone who is unwell returns to work too soon.

What do we need to think about as regards our policies?

Review relevant policies (such as those relating to sickness, absence or dependant leave, travel, travel in inclement weather and homeworking) and procedures, considering how these might need to be modified. For example, might your policies on what happens when it snows be useful as a template if people cannot make it in?

Procedures in the event of a pandemic or crisis may include suspending the normal practices around return to work, sick pay or dependant leave. For example, while a company sickness policy may require an employee to return to work as soon as they are feeling well enough, a person suffering from coronavirus should not return to work until they have received medical advice confirming that they are unlikely to be infectious. You may  want to start preparing communications to staff about these things?

Employers may need to give their employees more time off to care for dependants than normal, especially if schools are shut. The statutory rights to dependency leave (unpaid) are limited and designed to allow a carer to put in place arrangements for the immediate care of a dependant. If dependants become very seriously ill, or care arrangements are hard to come by as a result of a pandemic it would generally be felt to be unrealistic for employers to expect people to take only their minimum entitlements. While in normal circumstances this might lead to disciplinary action, the importance of enforcing the rules may dwindle in comparison to the crisis?

What about certifying absence from work?

If your employee has been advised to isolate themselves and not to work in contact with other people by NHS 111 or Public Health if they are a carrier of, or have been in contact with an infectious or contagious disease such as COVID-19, the Government is asking that employers use their discretion around the need for medical evidence for a period of absence where an employee is advised to self-isolate due to suspected COVID-19, in accordance with the public health advice being issued by it.

Will I have to pay for coronavirus related leave? 

• If the person is sick or advised by a medic to isolate

If the employee has taken sick leave because they are unfit for work then your normal sickness procedures/pay systems will kick in (see below). This will be the case if Public Health assess them and advise them to self-isolate for 14 days.

For Statutory Sick Pay purposes Section 151(4) of the Social Security Contributions and Benefits Act 1992 states:- “For the purposes of this Part of this Act a day shall not be treated as a day of incapacity for work in relation to any contract of service unless on that day the employee concerned is, or is deemed in accordance with regulations to be, incapable by reason of some specific disease or bodily or mental disablement of doing work which he can reasonably be expected to do under that contract.”. If the person is ill they will be within this.

So assuming that someone who self isolates does so because they are given a written notice (see here), typically issued by a GP or by 111, then they are deemed in accordance with the Regulations to be incapable of work, and so are entitled to statutory sick pay.

If your sick pay (above and beyond SSP) is discretionary real care will have to be taken to be consistent – an employer can be vulnerable to allegations of discrimination or breach of trust and confidence as well as allegations that no reasonable employer would have exercised the discretion in the way you have. Start thinking now how you would ensure consistency.

• If you send the person home as a precaution, for example, because they have just returned from holiday or a business trip to an affected location and you don’t want to take a risk of them being infectious and spreading the virus

It is very unlikely that you have a contractual right to suspend pay if someone is self-isolating or sent home as a precaution because clauses in contracts relating to suspending pay are usually confined to specific circumstances – suspected ill-health is unlikely to be covered.

If you didn’t pay the person you are likely to be acting in breach of contract, entitling the person to claim constructive dismissal and making an unlawful deduction from wages.

If you didn’t pay them, they might be also be more tempted to refuse, to return to work and potentially spread the virus?

You may decide to set the person up to work from home if that is possible so that you are at least getting some benefit from paying them?

• If they self-isolate but they are not actually sick/advised by a medic to isolate

An employee might self-isolate as a precaution because of others they have travelled with from somewhere where others have been ill but they are not themselves symptomatic or ill, in order not to spread the virus, following the current guidance eg:- for those returning from Northern Italy.  As they are not actually ill, sick pay doesn’t apply and you are not obliged to pay as they are not ready and available for work. 

You could decide to agree with the employee that the time spent in self-isolation is paid holiday so that the employee is still paid and earning for this period and so less likely to try to return to work early and potentially spread the virus?

You may decide it is appropriate to pay here to mitigate the risks of people coming in unwell?

Self-isolation is unlikely to be “specific disease or bodily or mental disablement of doing work”? for the purposes of Section 151(4) of the Social Security Contributions and Benefits Act 1992 states:- “For the purposes of this Part of this Act a day shall not be treated as a day of incapacity for work in relation to any contract of service unless on that day the employee concerned is, or is deemed in accordance with regulations to be, incapable by reason of some specific disease or bodily or mental disablement of doing work which he can reasonably be expected to do under that contract” and statutory sick pay. It would require a very, very generous interpretation of that section to bring self-isolation within it.

BUT regulation 2 of the Statutory Sick Pay (General) Regulations 1982 provides:-

(1)     A person who is not incapable of work of which he can reasonably be expected to do under a particular contract of service may be deemed to be incapable of work of such a kind by reason of some specific disease or bodily or mental disablement for any day on which either
[(b)     he is—
 
(i)     excluded or abstains from work, or from work of such a kind, pursuant to a request or notice in writing lawfully made under an enactment; or
 
(ii)     … [by reason of it being known or reasonably suspected that he is infected or contaminated by, or has been in contact with a case of, a relevant infection or contamination]].
 
“relevant infection or contamination” means…  (i) any incidence or spread of infection or contamination, within the meaning of section 45A(3) of the Public Health (Control of Disease) Act 1984 in respect of which regulations are made under Part 2A of that Act (public health protection) for the purpose of preventing, protecting against, controlling or providing a public health response to, such incidence or spread.

The Health Protection (Coronavirus) Regulations 2020 contain a declaration by the Secretary of State that the incidence or transmission of novel Coronavirus constitutes a serious and imminent threat to public health, and the measures outlined in these regulations are considered as an effective means of delaying or preventing further transmission of the virus.

So if the person self isolates because they are given written notice by the GP or Public Health, then they are deemed by the law to be incapable of work and so entitled to statutory sick pay. 

If they choose to self-isolate, perhaps as an over caution and they don’t have a written document, then they are not entitled to sick pay.

You may want to think about employees signing declarations as regards their absence to deter dishonesty?

• If they have been placed in quarantine/cannot come to work

If the Government places an employee in quarantine because a place is locked down because of the spread of the virus but they are not actually sick, but cannot work as a result, you would not be obliged to pay as it is not a situation where the employee is willing and ready to work.  This would be unpaid leave. 

You could decide to agree with the employee that the time spent in quarantine is paid holiday so that the employee is still paid and earning for this period?

If someone is sick do we pay SSP after 3 days as normal?

The Government has announced on 4 March 2020 in Parliament an intention to make SSP run from day 1 of sickness, not day 4.

Could we change contracts now to make it clear that time off for coronavirus would not be paid?

Imposing a change of contract will constitute a unilateral variation (potentially giving rise to claims for constructive dismissal) so you would need the agreement of your employees following consultation with them or a trade union (where one is recognised): this may not be feasible at very short notice. The possibility of these changes having to be imposed in future is something that could be drawn to the attention of employees (and union representatives) now, thus avoiding scope for conflict later?

Do we introduce new Health and Safety rules?

Yes, you have duties to take reasonable care of your staff. You should issue reasonable management instructions about precautions you want your employees to take.

What do we do if this does become a pandemic?

During a pandemic or crisis, you must keep yourself and employees informed about related health risks. Actions could include:

• Having a system or means to keep abreast of government advice on any current issue, as it develops and to cascade information to staff. This might mean daily checks on the government  and NHS websites.
• Having a contingency team that meets regularly and is responsible for decision making and implementing decisions within the organisation. In a crisis situation that might mean daily meetings.
• Having reliable and effective systems for communicating with employees. Do you have business continuity plans in place that could be triggered if needs be?
• Risk assess and monitor risks on an ongoing basis – for example, you may decide that rather than people take public transport to commute, they may be safer to work from home, if that is practicable. You might have more remote meetings, using technology rather than bringing people together.
• Take steps to ensure that there is good hygiene in the workplace (based on the facts and science of the pandemic itself) and that working practices do not pose undue risks to employees. Actions could include:
  • Reviewing systems of hygiene to ensure that they provide appropriate protection. For example, staff need to be encouraged to regularly wash their hands with soap, to carry and use tissues and sanitising hand gel. Practically, training or communications to all staff about why these practices are required often boosts compliance beyond a simple mandate about doing so.
  • Increasing the cleaning of hard surfaces in the workplace, particularly phones and door handles. For useful guidance on hygiene and risk control for workplace cleaning staff, see HSE: Pandemic Flu: Workplace Guidance (April 2008). 
  • Carrying out a cost/benefit analysis for offering preventative injections (if this becomes available) to the workforce. Communicating the potential benefits of the preventative measure for the employees, their families but also those who may be unable to have this (for example, those who cannot have it due to allergies) may help to increase the uptake. 
  • Carrying out a risk assessment to identify any higher risk groups, such as those who have a high level of contact with each other or those who are vulnerable due to other health conditions.
  • Think about the knock-on effects of people working longer hours to cover absence – we need to make sure you don’t fall foul of the Working Time Regulations 1998 as regards rest breaks and weekly and daily rest.

Would issuing face-masks or over shoes help?

Whilst this might make you feel better and those wearing them feel better protected in the case of a pandemic, face masks are only of any use if they have been properly fitted to the wearer and ‘fit-tested’.  A badly fitted face mask could give false comfort.

Government guidance is that “the best way to reduce any risk of infection is good hygiene and avoiding direct or close contact (closer than 2 metres) with any potentially infected person”.

It also says “Any member of staff who deals with members of the public from behind a full screen will be protected from airborne particles”.

There is no evidence plastic overshoes would be of benefit.

What if people are stereotyping colleagues?

There have already been examples of bullying and harassment against colleagues from China or SE Asia where those in the UK have been prejudiced in their attitude to the risk of transmission of the coronavirus. You would want to stamp out such bullying and harassment in the normal way using your normal dignity at work procedures and make it clear that such behaviour is not tolerated.

What if someone insists on coming into work and we have concerns they shouldn’t be here?

If there is an identified risk that an employee may have been exposed to coronavirus then it is understandable, in light of an employer’s duty to protect the health and safety of other employees, that the employer would wish to keep that employee away from the workplace until the risk has passed. Ultimately, the employer may regard the risk of allowing the employee to remain at work as outweighing any employment law risk which could exist in suspending them. 

In terms of the employment law position, the employer should consider whether it has an express right to require the employee to stay at home. There may be a garden leave clause in the contract but often these only apply to where someone is working their notice. It wouldn’t be uncommon for the contract to be silent on it. 

The question is then whether there is an express or implied right for the employee to attend work in these circumstances. It would be unusual for the employer to have provided the employee with an express right to attend work regardless of circumstances, and there is no general implied term requiring an employer to provide work provided it continues to pay the employee’s wages. It is therefore unlikely to be a breach of implied duties to require an employee to stay at home in these circumstances, assuming there are reasonable and non-discriminatory grounds for concern, and the matter is dealt with appropriately, proportionately and sensitively. 

It is worth noting the importance of dealing with suspension in this context sensitively and proportionately, as mentioned above. For example, has the person been in direct contact with someone who is ill? Do they have a temperature and cough? A failure to act proportionately could amount to a breach of the implied duty of trust and confidence.

We have suspended the person from work – what do we pay them?

In terms of pay, if the employee is not, at the point they are suspended, unfit to work, then it is unlikely that they are entitled to statutory sick pay (SSP). For the purposes of SSP, a day of incapacity is defined as:

“A day on which the employee concerned is, or is deemed in accordance with regulations to be, incapable by reason of some specific disease or bodily or mental disablement of doing work which he can reasonably be expected to do under that contract”.

(Section 151(4), Social Security, Contributions and Benefits Act 1992 (SSCBA 1992).)

If the employee is not actually incapable of working at the point they are suspended then their absence is unlikely to be regarded as sickness absence, and they are not entitled to SSP. If they were diagnosed with coronavirus, or otherwise became too unwell to work, then the position would, of course, be different.

Where they are being suspended on health and safety grounds, because of a possible risk of infection, it is likely that they have the right to continue to receive full pay (in the absence of a contractual provision to the contrary). You are not obliged to provide the employee with work provided you continue to pay wages but you could of course, ask the employee to simply continue working from home (unless they are too ill to work).

Can we discipline someone refusing, we think unreasonably, to come to work?

Yes potentially but you will have to take care to investigation the circumstances. There is a risk that if someone has a medical condition that might contribute to anxiety even if it is irrational, that disciplinary action could be a detriment which gives them a section 15 Equality Act claim.

If our operations are severely affected what can we do? Some businesses are already struggling to get parts from China.

Check your contracts of employment – have you reserved the right to lay-off workers or place them temporarily on short-time working? You will need to take advice on this as it is important to avoid triggering a redundancy situation.

You may want to introduce a voluntary special leave  policy on a temporary basis whereby people can opt to take paid or unpaid leave. Some people who can afford to take leave may welcome the opportunity but there will be others who couldn’t afford to do so.

You may want to consult with staff about a shorter working week: in 2007/8 many employers found agreeing a temporarily shorter working week with a reduced wage bill was a successful mechanism to avoid redundancies.

This is a link to more information about lay-offs and short-time working: guidance

Refreshing Law 

March 4th 2020