We have recently had quite a few enquiries from employers, asking us specific information pertaining to the best (and legal) way to manage an instance whereby an employee is suspected of having Coronavirus. Here is a summary of what you need to know.
Can you suspend an employee if you suspect them of having Coronavirus?
Unless employment documentation contains specific provisions to the contrary, the following applies to all employers:
- You need to have a good objective reason to suspend an individual for health reasons.
- You need to continue to pay employees until/unless they are unable to fulfil their contractual duties.
- You do not need to require them to work during such suspension but can require them to do so if you have the available infrastructure and they are well enough.
If specific provisions for such an occurrence are addressed within an employment contract, it is essential these measures are upheld, so be sure to check these before taking action.
If a member of staff has returned from a Category 1 (high risk) country, are we able to ask him/her to self-quarantine for 14 days after travel?
The more detailed ‘legal’ reason for the above stance is that, on the basis there is no express or implied contractual right to require the employee to stay at home or for the employee to attend work, then the employer has to weigh-up their duty of care to provide a safe working environment for all workers against the individual’s rights. It is unlikely to be a breach of implied duties to require an employee to stay at home if there is a credible risk that they could spread an infectious disease (assuming there are reasonable and non-discriminatory grounds for concern, and the matter is dealt with appropriately, proportionately and sensitively).
If a member of staff is being self-quarantined for the 14 day period, do we need to pay her/him during this time?
If the employee is fit for work at the point they are told not to attend work, then it is unlikely that they would be entitled to statutory sick pay. There is also an implied contractual term that where an employee is willing and able to perform work in accordance with the contract, the employer has an obligation to pay wages. Therefore if the employee is not actually incapable of working at the point they are told to stay away from their work premises, then they are entitled to be paid as normal. If they were diagnosed with coronavirus, or otherwise became too unwell to work, then the position would, of course, be different. The employer is generally not obliged to provide the employee with work provided it continues to pay wages but it could of course, ask the employee to simply continue working from home where able, based on the employer’s infrastructure.
It should be noted that an update from the PM, published 4th March, has stated that emergency legislation, “will allow the payment of statutory sick pay from the very first day [the employee is] sick instead of four days under the current rules”. In accordance with government advice, it is also suggested that employers use their discretion in requiring medical evidence for staff absences during the required 14 day self-isolation period.
What policies should I put in place to safeguard the working environment?
Suggested policy for UK staff would be to follow the practices set out below:
- If you or any of the people with whom you live or to whom you or any of those people have had substantial exposure have recently returned from a Category 1 area, you must self-quarantine for at least two weeks – obviously, those in quarantine must not come to the office for risk of further infection/contamination.
- If you or any of the people with whom you live or to whom you or any of those people have had substantial exposure have recently returned from a Category 2 area AND are displaying any of the symptoms detailed in 3) below, you must self-quarantine for at least two weeks – obviously, those in quarantine must not come to the office for risk of further infection/contamination.
- If you are feeling unwell and/or displaying other suspect symptoms, notably raised temperature, shortness of breath / sore throat / head ache, coughing (especially dry cough) or sneezing then, unless you have work that demands your presence in the office, contact your line manager to request permission to stay at home and, if you are feeling sufficiently well, work remotely. If, despite such symptoms, you do have urgent work which would demand your presence in the office then consult your line manager before coming in, and your line manager will liaise with HR and if necessary medical advisers before reaching a decision.
- Hygiene (in line with recommendations by Public Health England):
- It is imperative to keep clean – especially washing hands either in warm soapy water or with antibacterial gel (alcohol-based);
- This should be done regularly and especially after meetings, and where you have shaken hands with clients or other attendees (some people are now avoiding handshakes altogether – that is currently optional);
- It is suggested that you are especially diligent on washing hands after touching taps or door handles or other surfaces in toilets so as to avoid transmission of germs;
- Do not touch your eyes, nose or mouth if your hands are not clean;
- If you sneeze or cough please do so into the crook of your arm or a tissue and then immediately dispose of the tissue in a waste bin.
- If you travel in on crowded public transport then take particular care to follow the above guidelines as soon as you arrive in the office though it would be good practice to follow this advice however you get in.
Finally, please note that we are keeping a watching brief, particularly having regard to any guidelines or policy that flows from official sources such as the Department of Health. If any of you individually want to bring any matters relating to the Coronavirus to the Company’s attention, please let management know and they will progress matters as applicable.
What is the current guidance on this from the UK government, if any?
The Government Guidance for employers and businesses does not specifically reference advice on pay for those either in self-imposed isolation, or those who are have fallen ill. However, they do advise on general practice with regards to protecting the office environment from infection:
- If a member of staff/public with suspected COVID-19 has recently been to your workplace no restriction or special control measure are required whilst awaiting laboratory test results. 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.
- If a member of staff/public with confirmed COVID-19 has recently been in your workplace closure of the workplace is not recommended. The management team of the office/workplace will be contacted by the PHE local Health Protection Team to discuss the case, identify people who have been in contact with them and advise on any actions or precautions that should be taken.
- If an individual in the workplace has had contact with a confirmed case of COVID-19 the local Health Protection Team will provide the relevant staff with advice. Contacts are not considered cases and if they are well, they are very unlikely to have spread infection to others.
- When certifying absence from work, by law, medical evidence is not required for the first 7 days of sickness. After 7 days, it is for the employer to determine what evidence they require, if any. Your employee will be advised to isolate themselves and not to work in contact with other people by NHS 111 or PHE if they are a carrier of, or have been in contact with, an infectious or contagious disease, such as COVID-19. We strongly suggest 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 the government.
- If a member of staff is returning from travel anywhere else in the world within the last 14 days the likelihood of them coming into contact with a confirmed case is extremely low. Currently, there are minimal cases outside of the listed areas. These staff can continue to attend work unless they have been informed that they have had contact with a confirmed case of Coronavirus.
- In handling post, packages or food from affected areas, employees should continue to follow existing risk assessments and safe systems of work. There is no perceived increase in risk for handling post or freight from specified areas.
- When cleaning offices and public spaces where there are suspected/confirmed cases of COVID-19 – Coronavirus symptoms are similar to a flu-like illness and include cough, fever, or shortness of breath. Once symptomatic, all surfaces that the person has come into contact with must be cleaned including: all surfaces and objects which are visibly contaminated with body fluids; all potentially contaminated high-contact areas such as toilets, door handles, telephones. Public areas where a symptomatic individual has passed through and spent minimal time in (such as corridors) but which are not visibly contaminated with body fluids do not need to be specially cleaned and disinfected. If a person becomes ill in a shared space, these should be cleaned using disposable cloths and household detergents, according to current recommended workplace legislation and practice.
- Rubbish disposal, including tissues – All waste that has been in contact with the individual, including used tissues, should be put in a plastic rubbish bag and tied when full. The plastic bag should then be placed in a second bin bag and tied. It should be put in a safe place and marked for storage until the result is available. If the individual tests negative, this can be put in the normal waste. Should the individual test positive, you will be instructed what to do with the waste.
The information provided here is suitable for both small and large businesses. If you are uncertain of your position, or have any further questions or concerns, please contact our Employment team or visit Gov.uk for the latest information and advice. We will be providing further updates to employees and those affected by the Coronavirus in due course.