Many employers are in the process of putting in place systems and processes to plan for possible disruption caused by the coronavirus. Some employers have employees off sick or self-isolating as a result of the virus. We have set out below the most frequently asked questions from employers to help them to plan in a calm and practical way for whatever disruption may lie ahead.
My employee is off sick with symptoms of the virus
In this situation, the employee is incapable of work due to illness. They qualify for Statutory Sick Pay (SSP) in the UK, subject to other qualifying criteria (such as the lower earnings limit of £118 per week) and are likely to qualify as sick or incapacitated under contractual sick pay provisions. Put simply, treat them like you treat any sick employee.
Although current rules stipulate that SSP is only paid from day four of absence, the UK Government has announced that SSP will be available from day one of absence in accordance with new rules that have not yet been formally implemented. We do not know when formal implementation of the new rules is due to take place. Employers are liable to pay SSP to employees, at a current rate of £94.25 per week, and this can no longer be reclaimed from the Government.
My employee has been told to self-isolate by Public Health officials / a GP
In this situation, the employee may have a written notice from Public Health England, the NHS or another health authority which tells them to self-isolate. In these circumstances SSP is payable, subject to the usual qualifying criteria.
If the employee has no notice from a health authority, they may not be entitled to SSP. However, employers should give careful thought to whether it is nonetheless sensible to pay employees to self-isolate in these circumstances, taking into account the risks of such employees turning up to work and potentially putting other employees, customers and clients at risk. Whether or not contractual sick pay is payable in this situation will depend on the terms of the contract and the employer’s policies.
My employee is off sick with the virus but has run out of contractual sick pay and I’m worried they will come back to work before they should
You may wish to consider paying employees who have run out of contractual sick pay entitlement if the reason for their absence is Covid-19. It is important to treat employees equally, but there are unlikely to be issues with this provided you treat all employees with Covid-19 the same.
Even if you do not pay contractual sick pay, you may be able to request that the employee does not come to work until they are better and sufficient time has passed to indicate that they will no longer be contagious. You should check up to date Government and NHS advice for guidance on this point. If you make such a request, you will likely need to pay the employee in question. However, this would typically depend on the contract between you and the employee, which should be checked and appropriate advice on it obtained.
My employee does not want to come to work due to concerns about the virus – do I need to pay them?
Probably not (subject to what the employee’s contract and your policies say). Unless the employee is self-isolating on Government, Public Health England or NHS advice, or is sick, they are likely not entitled to SSP and, as they are not sick, it is unlikely your contracts and policies will provide for contractual sick pay in the circumstances. However, the employee’s contract and your policies should be carefully checked.
My employee is due to go on holiday to an area the Government recommends not to travel
It will be sensible to advise any employees in this position to self-isolate on their return (although they should be doing so anyway, based on Government advice). You may have to pay an employee who self-isolates in these circumstances as they may qualify for SSP as discussed above.
As to contractual sick pay, or whether you should pay in full because you, the employer, requested the employee to stay at home, it is not straightforward. The employee has gone against Government advice by travelling in the first place and that could affect entitlement to contractual sick pay or normal pay if you ask them to stay at home. It would be best to check the contractual entitlements of the employee before they go and make it clear how they will be treated on their return, so that they can make an informed choice. The employee may be able to recover their costs from travel insurance and so may choose not to travel.
My employee is due to go away on holiday and there is no travel restriction in place – should I tell them not to go?
It is hard for an employer to limit the activities of an employee, such as holidays, outside of work. Best practice is to discuss the employee’s plans with them and make them aware that, subject to what the Government advice is at the time of their return, they may be asked to self-isolate. You should ask the employee to keep you updated on their plans and on any issues which develop while they are away, so that you can discuss these with them and take any appropriate steps on their return,to protect the health and safety of others in the workplace.
My employee is away on holiday and can’t get home due to cancelled flights, do I have to pay them?
In this situation the employee has not been quarantined or asked to self-isolate. This is similar to other travel disruption situations we have seen in the past, such as the volcanic ash cloud. In these circumstances, holiday, absence and travel policies should be checked to see if there is an entitlement or expectation that the employee will be paid. There will be no entitlement to SSP (unless the criteria set out above are incidentally met) and most contracts and policies do not provide for contractual pay for employees in these circumstances.
However, if the employee was travelling for work and becomes stuck abroad they are most likely entitled to be paid as usual.
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.
Should I send people home to work if their job permits it?
In all the above situations, home or flexible working may allow the employee to continue to work as usual, thereby avoiding issues around sick pay and also enabling the employer’s business to continue as normal, so far as possible. It is sensible for all employers who are consider home working, to test home working facilities now, before they may be necessary, and to communicate openly with employees about any plans and arrangements for home working.
Employers may consider splitting their workforce into groups and having certain groups in on certain days, to mitigate against the risk of the whole workforce contracting the virus, in the event some employees do become ill. When considering who to put in which group, consider splitting business critical roles across groups so that the business can continue to function so far as possible in the event employees become unwell.
If I am introducing home working, what else should I consider?
As with any home working arrangements, employers should consider a number of issues, including provision of the necessary home working equipment and infrastructure.
A health and safety risk assessment should be carried out for those working at home, which will include checking whether the employee’s home working set up has appropriate and safe equipment and furniture. 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.
Remote and agile working may not be practicable for all industries and job roles, but can be of great assistance for some to allow a business to continue operating, when attending the workplace may become impossible.
To discuss any concerns or questions arising from this alert, for a review of your policies and procedures, or for specific legal advice on particular circumstances, please contact our partners Sarah Chilton or Beth Hale.