As at the time of writing, 12 new cases of coronavirus have been confirmed in the UK, taking the total number of cases to 51. Around 90,000 people have contracted the virus globally, with cases in more than 50 countries, causing more than 3,000 deaths.
On Tuesday 3 March, the Government published its coronavirus action plan, comprising four strands:
(1) containing the virus;
(2) delaying its spread;
(3) researching its origins and cure; and
(4) mitigating the impact should the virus become more widespread.
The Government also introduced, with immediate effect, the Health Protection (Coronavirus) Regulations 2020 to impose restrictions on any individual considered by health professionals to be at risk of spreading the virus seeking to leave supported isolation before the current quarantine period of 14 days is complete.
If your business has not done so already, now is the time to put in place your own action plan to prepare for the realistic possibility that one or more of your employees may return from travelling to one of the designated high-risk countries and may need to self-isolate; one or more of your employees may contract the virus or display symptoms; and, in the worst-case scenario, your workplace may have to shut temporarily. The Prime Minister has advised that up to a fifth of the workforce could be off sick during the peak of the coronavirus which could be in the summer months.
What steps should you take as an employer to put in place your action plan?
- Provide your employees with up-to-date information and guidance about COVID-19; its symptoms; the best ways of preventing the spread of the virus; and what to do if they experience symptoms. The Department of Health and Social Care post updated information online at 2pm every day. Information can also be found on Public Health England’s website and the World Health Organization’s website.
- Keep a record of workers who have been travelling to and from the designated high-risk areas, for both business and personal travel, as well as individuals who have had contact with persons or members of their household who have travelled to or from high-risk countries or who have displayed symptoms.
- Keep a record of, and carry out risk assessments for, any members of staff who may be at high risk of contracting the virus or developing more severe symptoms if they do, such as those over the age of 60; those with cardiovascular disease, a respiratory condition, immune deficiencies or diabetes; or staff who are pregnant.
- Promote good hygiene practices by staff in the office, such as washing hands regularly with soap and water or sanitising gel, using disposable tissues when coughing or sneezing and disposing of these immediately afterwards, and avoiding touching the eyes, nose and mouth.
- Increase the frequency and extent of cleaning within the workplace, focussing on communal and frequent touch areas such as door handles, telephones, photocopiers and bannisters. Provide antibacterial hand gel.
- Prohibit business travel to category one areas (Wuhan city and Hubei Province, China; Iran; Daegu or Cheongdo, Republic of Korea; any Italian town under containment measures) and category two areas (Cambodia, China, Hong Kong, north Italy, Japan, Laos, Macau, Malaysia, Myanmar, Republic of Korea, Singapore, Taiwan, Thailand and Vietnam) and recommend employees avoid other non-essential business travel.
- Require staff to notify the business of any plans to travel to category one and two areas and advise and recommend that personal travel to such areas is avoided, based on Government guidance.
- Under the Health and Safety at Work Act 1974 , employers have a duty to protect the health, safety and welfare of their workforce, as well as a common law duty to take reasonable care of the health and safety of their staff. In order to comply with these duties, issue instructions to staff to self-isolate, even if asymptomatic, and to follow steps on the 111 online coronavirus service if they have returned to the UK from category one countries/areas within the specified timeframes; and to self-isolate and call NHS 111 if they develop symptoms after returning from any of the category two countries/areas.
- Avoid recommending staff call NHS 111 if they have a cough or cold and have not been in contact with anyone confirmed as having COVID-19 or have not returned from a category one or two area and are not displaying the other symptoms of COVID-19. NHS 111 is already being inundated with calls. There is an online services with a series of questions workers can go through to determine whether they need to speak to 111 and this should be recommended in the first instance in order not to overburden the NHS.
- Ensure that staff contact details and emergency contact details are up to date.
What can you do if an employee refuses to stay and home or self-isolate?
- Employees also have a duty to take care of their own health and safety and the health and safety of others who may be affected by their actions at work under the Health and Safety at Work Act 1974. Refusing a reasonable management instruction to remain at home would be in breach of this duty and could also be a breach of the implied term of mutual trust and confidence.
What is the position regarding sick pay?
- Clearly an employee who is diagnosed with COVID-19 and remains off work will be entitled to sick pay in accordance with their contract of employment and would be entitled to Statutory Sick Pay (“SSP”), subject to satisfying the usual conditions. Breaking news as of Wednesday 4 March is that workers will receive SSP from the first day off work, not the fourth, in order to help contain coronavirus.
What about an asymptomatic employee who self-isolates?
This will depend on the terms of the employee’s contract of employment and the circumstances of self-isolation. SSP is only payable in respect of a period of incapacity for work where the worker is “incapable by reason of some specific disease or bodily or mental disablement of doing work” (section 151(4) of the Social Security Contributions and Benefits Act 1992). A person self-isolating who is well enough to work would not satisfy this test. However, regulation 2 of the Statutory Sick Pay (General) Regulations 1982 provides “a person who is not incapable of work … 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 … 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.” Following the introduction of the Health Protection (Coronavirus) Regulations 2020, coronavirus does fall within the definition of a relevant infection or contamination. Therefore, if a worker is given a written notice from a GP or by NHS 111 that they should self-isolate, then they will be entitled to SSP. If an employer requires an employee to self-isolate even though they have not been diagnosed with COVID-19 or issued with a written notice to self-isolate by their GP or 111 and they are well and remain ready and willing to work, it is advisable to continue to pay their normal pay. Whilst this is not the case where the worker self-isolates voluntarily without being required to do so, you should take into account any other relevant factors such as the employee’s age, health, and any concerns they may have about attending the workplace. If an employee has a disability under the Equality Act 2010, you may have a duty to make reasonable adjustments, such as allowing the employee to work from home on full pay.
ACAS has recommended that where employees are genuinely concerned about attending the workplace, employers should try to resolve those concerns. You could offer flexible working, such as working from home, allowing the employee to commute outside of peak hours, allowing the employee to take a period of annual leave, or a period of unpaid leave.
What if schools close?
- Under the Employment Rights Act 1996, employees have the right to take reasonable unpaid time off to care for dependants in an emergency. Some employers offer paid time off to care for dependants.
What if you need to close the office/workplace?
- Whilst the risk of this happening is low, ensure you have a way to communicate with employees if they are unable to attend work due to a workplace closure.
- Request that staff take home work laptops and/or mobile phones daily.
- If an employee who has COVID-19 attends the workplace, a local Public Health England protection team will visit the workplace to discuss the case, identify people who have been in contact with the infected individual, carry out a risk assessment, and advise on any actions or precautions to take.
Clearly coronavirus is causing a lot of concern but, as the Prime Minister stressed, for the vast majority of people in this country, we should be going about our business as usual. Having a considered action plan in place for your workplace will help you to manage the risks presented by this global virus.
If you require further information about anything covered in this article, please contact Sarah-Jane Watson using the contact details below.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.