The risks from Covid-19 are still very much present in the workplace and it is important to remember that employers have a duty of care towards their employees and should take reasonable steps to protect the health and safety of their workforce. This information is being continually checked and updated.
The World Health Organization (WHO) explains that coronaviruses are a large family of viruses that cause illness ranging from the common cold to more severe diseases such as SARS (Severe Acute Respiratory Syndrome). This particular episode has been named “Covid-19” and appeared in December 2019 in Wuhan, China.
The symptoms include a fever, cough, shortness of breath and loss or change of sense of smell or taste. Some people may suffer from a mild illness and recover easily, while in other cases, infection can progress to pneumonia. Reports suggest that the elderly, those with weakened immune systems, diabetes, cancer and chronic lung disease are the most susceptible to serious illness and death. Symptoms can appear in as few as two days after infection or as long as 14 days.
The virus is said to most likely spread from person to person through:
- direct contact with a person while they are infectious
- contact with droplets when an infected person coughs or sneezes
- touching objects or surface that were contaminated by droplets from secretions coughed or sneezed from an infected person with a confirmed infection.
Latest Government guidance
The advice is under constant review and is subject to change. You can keep up to date on latest Government developments here.
Duty of care
Employers have a duty of care towards their employees which includes not exposing them to unnecessary risk. In this case, that may include not putting them in a position in which they could become infected by the virus without taking all reasonable precautions.
Your duty of care, where coronavirus is concerned, may differ depending on an employee’s specific circumstances, for example, if they are in the risk category, for example over 70 or if they have underlying conditions.
In addition to having a duty of care to protect health and safety, you also need to consider their wellbeing. Consider any wellbeing initiatives you have and remind employees of them, for example, an Employee Assistance Programme.
Give employees the facts
The risk of becoming infected will differ depending on personal circumstances but it is important to convey to employees the reality of the situation to keep concern proportionate to the risk and encourage good hygiene.
For the latest travel advice, you can keep up to date with the latest Government guidance here.
If an employee has a confirmed case of coronavirus
Your normal sickness absence and pay policy will apply to employees who have coronavirus; however, you may wish to offer them furlough, if possible. Employers can now decide whether to continue with sick leave, or furlough employees. This means that sick leave and furlough are interchangeable but cannot be taken at the same time — it must be one or the other. If the employer decides on sick leave and Statutory Sick Pay (SSP), they cannot claim wages via the Scheme, but they may be able to recover the SSP. Employers should bear in mind that the minimum furlough period which qualifies for the grant is three weeks, so any sickness absence which is not this length would not qualify. In addition, the guidance is clear that the Scheme is not to be used to top up pay for short sickness absences.
If an employee has returned from an affected area, then develops symptoms and stays at home
This is best treated as sickness absence due to the display of symptoms and your normal policies will apply. You may wish to consider other options such as working from home as a temporary measure while the employee self-isolates or furlough if appropriate (see above).
Employers who have concerns about an employee’s exposure
Where you have concerns about a non-symptomatic employee (for example, an employee who has recently returned from an affected area but has displayed no symptoms, or if it is known or suspected that the employee has had contact with someone known to have the virus but does not live with them) then the best advice is to follow the Government and NHS advice and advise the employee to self-isolate as needed.
Self-isolation, shielding and pay
The Government is advising that certain people should self-isolate. Those who experience even minor symptoms should self-isolate for 10 days; those who live with someone who develops symptoms should self-isolate for 14 days and if they experience symptoms, comply with the 7-day period which will override the 14 day period.
Those who receive a notification from a track and trace service that they have been in close contact with someone who has tested positive for coronavirus are also required to self-isolate for 14 days.
Those in a linked/extended household group should self-isolate for 14 days where someone else in that linked/extended household develops symptoms.
In addition, those who have been advised by a registered medical practitioner (or other person or body permitted to make the notification) that they are to undergo a surgical or other hospital procedure, and have been advised to self-isolate for a period of up to 14 days before their hospital admission, should do so.
On 28 September, the Health Protection (Coronavirus Restrictions) (Self-isolation) (England) Regulations 2020 came into force which introduce various criminal offences in respect of self-isolation. It is now an offence for an employer to knowingly allow a worker to attend any place for any purpose relating to their employment during the designated period of self-isolation. Breaches of this law can result in a fixed penalty notice of £1000 for the first offence increasing to £10,000 for repeated offences.
The terminology here is important; a breach is not restricted to an employer’s requirement for the employee to attend the workplace, or even a request. It is also not restricted to attendance at the workplace, but covers attendance at any place for any purpose relating to their employment.
The employer must be aware of the employees’ need to self-isolate, and of any breach of the self-isolation requirement by the employee. Workers are now under a legal obligation to inform their employer of the need to self-isolate, however, this only applies where the employee is not already working from the place they are self-isolating which is likely to be their home. Therefore, this will not apply when the employee is already working from home.
Employers may wish to confirm this stance to their employees by reminding them of the need to inform the employer of the requirement to self-isolate, and that they are prohibited from attending the workplace, or any other place for the purposes of work, during the self-isolation period.
Emergency legislation put in place requires statutory sick pay (SSP) to be paid to those self-isolating as described above in order to prevent the infection or spread of the virus in accordance with public health guidance, who is then unable to work as a result, providing they meet the other eligibility criteria.
However, current legislation appears to include only those in Scotland and Wales within the scope of entitlement to SSP where self-isolation is required because someone in the linked/extended household group has symptoms. It does not appear to extend to England.
Where the first day of absence was 13 March 2020 or later, SSP is payable from day one for anyone self-isolating, provided that other eligibility criteria is met including that the employee earns at least the lower earnings limit, and has been absent for at least 4 days in order to create a “period of incapacity for work”.
Those advised to shield on or after 16 April 2020 were entitled to SSP. Although shielding has now been paused, entitlement to SSP will start again if the individual receives a further notification to shield. Under England’s three tier COVID alert system, geographical areas can be categorised as “very high” alert areas which means the most stringent measures will be in place to prevent the spread of coronavirus. In addition to baseline measures that will apply to all “very high” alert areas, additional measures will be put in place based on the specific circumstances in that area. This may well include further ‘shielding’ notices being sent to those fall into the extremely clinically vulnerable category.
In addition, measures have been put in place for employees to obtain medical evidence from NHS 111 rather than their own GP. “Isolation notes” will provide you with evidence that your employee has been advised to self-isolate. You may ask for this document to evidence absence of over seven days, in the same way as with a normal “fit note” from the GP. As with normal sickness absence, no isolation notice will be issued for the first seven days, during which employees can self-certify.
The notes can be accessed through the NHS website and NHS 111 online. The note will be emailed to the employee, or in some cases, directly to you.
In respect of those who may need to shield again in the future, the letter received from the NHS advising the individual to shield is sufficient evidence for employers for payment of SSP.
In respect of those who have received a notification informing them of close contact with someone who has tested positive for coronavirus, the notification they received can be used as evidence.
Employers may be able to agree a period of homeworking during self-isolation or shielding provided the employee remains fit for work, or annual leave, in which case full pay will be maintained.
Employees who are pregnant
Current guidance outlines that pregnant employees should be considered as clinically vulnerable. Employers already have a legal duty to assess the risks that the workplace could pose to pregnant employees and must take steps to mitigate these. The threat of the coronavirus must therefore also be taken into account when decisions are made regarding whether pregnant employees can continue to conduct their role safely.
Employees who refuse to come to work due to concerns
If an employee is worried about catching the virus and refuses to attend work, Acas suggest listening to the employee’s concerns and offering reassurance. Your response to this will depend on the actual risk of catching the virus at work. It will be different for every employer and will depend on specific circumstances including whether anyone in the workforce has already been diagnosed or there is another real risk of exposure. You may decide to offer a period of paid annual leave or unpaid leave or allow the employee to work from home where this is feasible. Your response should be reasonable to the specific situation.
It should be noted that guidance from the government instructs that office workers should ‘work from home if they can’ across the UK. In England, those that cannot work from home, such as workers in retail, can be asked to go into the workplace provided it is Covid-secure.
Foreign travel and quarantine
From 10 July 2020, a 14-day quarantine period will apply to individuals returning to the UK from a country that is not on the travel corridor exempt list applicable to the country of return. This includes British nationals and those who live in the UK who will need to self-isolate for the required period before going out to work.
Travel corridor exemptions applicable can be found here:
- England: www.gov.uk/guidance/coronavirus-covid-19-travel-corridors?utm_source=0f9aa21f-0a18-4c8f-922a-54e0c0e126f9=email=govuk-notifications=immediate
- Scotland: www.gov.scot/publications/coronavirus-covid-19-public-health-checks-at-borders/pages/exemptions
- Wales: https://gov.wales/written-statement-international-travel-regulations.
Prior to 10 July, stricter provisions were in place which meant that, subject to limited exemptions, all individuals returning to the UK had to self-isolate. Although the requirement to self-isolate is less extensive now, the practical effect of the remaining requirement is the fact that employees who return from certain countries will need to self-isolate for 14 days on their return. This will potentially turn one week of annual leave into a period of three weeks’ absence; two weeks of annual leave into four weeks’ absence, etc. This will become an increasingly common issue as more relaxation on overseas travel is implemented.
Perhaps the most significant practical effect of this is the fact that employees who have travelled abroad on holiday will need to self-isolate for 14 days on their return. This will potentially turn one week of annual leave into a period of three weeks’ absence; two weeks of annual leave into four weeks’ absence, etc. This will become an increasingly common issue as more relaxation on overseas travel is implemented.
When an annual leave request is received, employers should:
- identify whether the employee intends to travel overseas
- if so, check whether any of the exemptions apply
- if not, ensure the employee understands that they will need to self-isolate on their return
- consider whether, in light of the self-isolation period, it is possible to accommodate the additional absence; if not, employers may choose to refuse the annual leave request
- when deciding whether the absence can be accommodated, consider whether the employee can work from home for the self-isolation period
- if the absence can be accommodated, consider how it will be covered.
Employers may attempt to agree an additional period of annual leave will be used to cover either all of the period or some of it. It should be remembered that employers can require an employee to take annual leave by giving the appropriate notice, ie twice the length of the period of leave in question. In the case of a full 14-day self-isolation period, notice would need to be at least 28 days. This may be preferable if an employee has a substantial amount of annual leave remaining before the end of the leave year.
Statutory sick pay is not payable for periods of self-isolation due to travel from overseas.
Closure of business
On 20 March 2020, the Government instructed all bars, pubs, restaurants, theatres (including cinemas), gyms, cafes, nightclubs to close as soon as they possibly could that evening and not re-open the following day. Timelines, or “routemaps” were then created for each UK country, according to which, their businesses were permitted to re-open.
The Government may require certain businesses to close, as part of targeted lockdown measures. This has tended to affect the hospitality sector in particular.
Hospitality businesses, with limited exceptions, in the central belt of Scotland (Ayrshire & Arran, Forth Valley, Greater Glasgow & Clyde, Lanarkshire, Lothian) were required to close from 6pm on Friday 9 October 2020 until Sunday 25 October. Other restrictions were placed on hospitality businesses in the rest of Scotland.
On 12 October 2020, the Prime Minister announced a three-tier alert system to apply in England. Geographical areas will be allocated to one of the following categories of alert: “medium”, “high” or “very high” with increasing levels of social distancing and industry restrictions. Certain businesses in “very high” alert regions must close. As a baseline, pubs and bars who do not operate as a restaurant which means serving substantial meals, like a main lunchtime or evening meal, will be instructed to close and consultation with local Government leaders may result in further closures to the hospitality, leisure, entertainment and personal care sectors. Retail businesses, schools, colleges and universities will remain open regardless of alert level.
Furlough and the Job Retention Scheme
The Government announced the Job Retention Scheme on 20 March 2020 via which businesses could apply for a grant to cover 80% of wages for employees who were being retained but not working, to a maximum of £2500 per month, in order to avoid unpaid lay off. On 29 May 2020, changes to the Scheme were announced to gradually bring about a wind down until the end of October when it will cease operating.
The Job Support Scheme
The Job Support Scheme will continue to offer limited wage support for businesses once the Job Retention Scheme ends, subject to qualifying criteria. There are two ways that employers can use the Job Support Scheme.
- Where a business is legally required to close as part of a local or national lockdown, employers can claim two thirds of an employee's wage to a maximum cap of £2,083.3300 per month.
- Where the business is not legally required to close, employers can claim up to 61.67% of an employee's wage but the employee must be working for at least one fifth (20%) of their working hours. The employer covers the pay for hours worked, and a further 5% of pay for “unworked” hours to a maximum of £125 per month. The Government will fund 61.67% of pay for “unworked” hours to a maximum of £1,541.75 per month.
If the employer/employees are not eligible for the Schemes
Where employers or employees do not qualify for funding from such Schemes, lay-off may be an appropriate alternative. Employees who are ready and willing to work but are not provided with work (as would be the case with a temporary closure) can be placed on lay-off. Lay-off must be with full pay unless there is a provision within the contract for lay-off without pay (subject to the payment of statutory guarantee pay for employees with at least one month's service at the time of lay-off). If there is no contractual provision, you can attempt to agree with employees a period of unpaid lay-off.
This may also occur when the business itself has not taken the decision to close, but where, for example, the landlord of the building from which the business operates has decided to close its doors, meaning that no one can enter. In this situation, employers should consider whether it can temporarily move to an alternative location or permit its employees to work from home. If no other alternative can be found, a period of lay-off may be required.
Closure of schools
Due to the closure of schools across the UK, it was likely that employers will face an increased number of employees who need to take time off for dependants. In general, schools are now permitted to open.
During the wider lockdown, the Government announced a list of key workers for whose children school would still be open. Key workers are those who work in the following sectors.
Health and social care
This includes, but is not limited to, doctors, nurses, midwives, paramedics, social workers, care workers, and other frontline health and social care staff including volunteers, the support and specialist staff required to maintain the UK's health and social care sector, those working as part of the health and social care supply chain, including producers and distributers of medicines and medical and personal protective equipment.
Education and childcare
This includes nursery and teaching staff, social workers and those specialist education professionals who must remain active during the Covid-19 response to deliver this approach.
Key public services
This includes those essential to the running of the justice system, religious staff, charities and workers delivering key frontline services, those responsible for the management of the deceased, and journalists and broadcasters who are providing public service broadcasting.
Local and national government
This only includes those administrative occupations essential to the effective delivery of the Covid-19 response or delivering essential public services such as the payment of benefits, including in government agencies and arms-length bodies.
Food and other necessary goods
This includes those involved in food production, processing, distribution, sale and delivery as well as those essential to the provision of other key goods (for example hygienic and veterinary medicines).
Public safety and national security
This includes police and support staff, Ministry of Defence civilians, contractor and armed forces personnel (those critical to the delivery of key defence and national security outputs and essential to the response to the Covid-19 pandemic), fire and rescue service employees (including support staff), National Crime Agency staff, those maintaining border security, prison and probation staff and other national security roles, including those overseas.
This includes those who will keep the air, water, road and rail passenger and freight transport modes operating during the Covid-19 response, including those working on transport systems through which supply chains pass.
Utilities, communication and financial services
This includes staff needed for essential financial services provision (including, but not limited to, workers in banks, building societies and financial market infrastructure), the oil, gas, electricity and water sectors (including sewerage), information technology and data infrastructure sector and primary industry supplies to continue during the Covid-19 response, as well as key staff working in the civil nuclear, chemicals, telecommunications (including, but not limited to, network operations, field engineering, call centre staff, IT and data infrastructure, 999 and 111 critical services), postal services and delivery, payments providers and waste disposal sectors.
Children with at least one parent who is a key worker could still go to school. Single parents who are a key worker could send their child to school.
In addition, schools stayed open for vulnerable children and those who get special needs support.
Children of all non-key workers were told to stay at home and observe social distancing.
NHS test and trace service
On 28 May 2020, the NHS test and trace service was launched in England. The service will:
- provide testing for anyone who has symptoms of coronavirus to find out if they have the virus
- get in touch with anyone who has had a positive test result to help them share information about any close recent contacts they have had
- alert those contacts, where necessary, and notify them they need to self-isolate to help stop the spread of the virus.
The Government states that, by following instructions to self-isolate, people who have had close recent contact with someone with coronavirus will be protecting their family, friends, colleagues and other people around them, and will play a direct role in stopping the spread of the virus.
When someone first develops symptoms and orders a test, they will be encouraged to alert the people that they have had close contact with in the 48 hours before symptoms started. If any of those close contacts are colleagues, the person who has developed symptoms may wish to (but is not obliged to) ask their employer to alert those colleagues. At that stage, those close contacts are not advised to self-isolate, but they:
- must avoid individuals who are at high-risk of contracting coronavirus, for example, because they have pre-existing medical conditions, such as respiratory issues
- must take extra care in practising social distancing and good hygiene and in watching out for symptoms.
“Close contact” means:
- having face-to-face contact with someone (less than 1 metre away)
- spending more than 15 minutes within 2 metres of someone
- travelling in a car or other small vehicle with someone (even on a short journey) or close to them on a plane.
Those who test positive will be asked, via the service, whether they have had any such close contact in the 48 hours before they developed symptoms and the time since they developed symptoms.
The service will then contact anyone they report as having had close contact with and tell them to begin self-isolation for 14 days from their last contact with the person who has tested positive, even if they do not feel unwell.
The practical effect of this service is that many more individuals are likely to self-isolate. In addition, large parts of a workforce, or an entire workforce, may receive an alert telling them they should self-isolate because one member of the workforce has tested positive for coronavirus. Employers can help to combat this by ensuring that employees work from home where possible, or implementing strict social distancing and hygiene measures in the workplace where home working is not possible.
Although self-isolation is voluntary at this stage, the Government has stated it will be made mandatory if necessary.
The Government has put together guidance for employers, which stresses that their role in the system is vital by:
- making their workplaces as safe as possible
- encouraging workers to heed any notifications to self-isolate and supporting them when in isolation.
It acknowledges that, although this may seem disruptive for businesses, it is less disruptive than an outbreak of coronavirus in the workplace will be, and far less disruptive than periods in lockdown.
Employers should support employees who need to self-isolate and must not ask them to attend the workplace.
If an employee needs to self-isolate, employers should consider whether they are able to work from home. This might include finding alternative work that can be completed at home during the period of self-isolation.
Employees who cannot work from home will be entitled to receive SSP in line with the guidance on self-isolation given above due to further legislative amendments. Alternatively, the employer may agree that a period of annual leave is to be taken so that full pay is maintained, or another form of paid leave that is available to the employee.
Giving options to ensure full pay is maintained may be particularly important due to the possibility that an employee may be reluctant to self-isolate if it means a drop in pay. Employers may wish to strongly encourage employees who receive a notification to make this known, and to self-isolate, in order to protect the rest of the workforce.
The NHS test and trace service will provide a notification that can be used as evidence that someone has been told to self-isolate. This notification will be needed to make a claim to the SSP Rebate Scheme.
A similar scheme, called “test and protect” is in place in Scotland.
Maintaining records of staff
On 18 September 2020, the Government changed its guidance surrounding the maintaining of records to track who is visiting venues within certain venues in England. It is now a legal requirement for designated venues to collect contact details for the purposes of NHS Test and Trace in England, alongside displaying official NHS QR code posters:
- first offence — £1000
- second offence — £2000
- third offence — £3000
- any further notices — £4000.
The following businesses in England now need to keep records of the working hours of their staff, and their contact details, for 21 days so that the data can be provided to NHS Test and Trace if requested. These businesses include, but are not limited to, the following:
- tourism and leisure
- close contact services
- facilities provided by local authorities.
Wider effect on employment law
Gender pay gap reporting
The Government has announced that the gender pay gap reporting obligation will be suspended for 2020 due to the coronavirus. Companies with 250 or more employees are required to submit their gender pay gap information once a year; for the private sector, the deadline is 4 April; for public sector, it is 30 March. In recognition of the extra pressure placed on businesses at this time, there will be no requirement to publish the data for this year.
The laws on annual leave have been amended to allow more flexibility on the carry over of leave. Previously, 4 weeks of annual leave was exclusive to the year in which it was accrued, meaning it could not be carried over except where it could not be taken because of sickness absence or annual leave. The remaining 1.6 weeks of leave could be carried over to the next leave year subject to the employer's agreement.
The restriction on carrying over the 4 weeks of leave has been lifted for circumstances where it was not reasonably practicable for a worker to take some or all of their leave as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society). Workers now have the right to carry forward leave accrued in this leave year to the next two leave years. The carry over of the 1.6 weeks' leave is still subject to agreement from the employer.
The rules on pay in lieu of accrued holiday on termination of employment have also been amended. Pay in lieu should include an element reflecting leave which was carried over in this way but remains untaken at termination.
Modern slavery statements
The Government has relaxed the rules around compliance with modern slavery requirements. An updated Government guide makes clear that businesses must continue their activity to identify and address risks of modern slavery in their operations and supply chains but recognises the challenges presented by the virus in publishing their statement within the usual timeframe. It notes “reduced staff capacity” as one such challenge. It states that “businesses which need to delay the publication of their modern slavery statement by up to 6 months due to coronavirus-related pressures will not be penalised”. The reason for any delay to the publication should be set out in the delayed statement.
Statements are required from all businesses who have an annual turnover of at least £36 million, and must normally be published within 6 months of the end of the company's financial year.
- Assess the risk of exposure in your business operations including any overseas workplaces.
- Remind yourself of your business contingency plan/pandemic contingency plan.
- Make arrangements for any overseas meetings to be held via Skype, etc or postpone them.
- Send communication to all employees reminding them of good hygiene measures.
- Ensure there are sufficient soap supplies available and consider providing tissues and hand sanitiser to the workforce.
- Speak with those in charge of cleaning the workplace and ask for frequent deep cleans.
- Ask employees to keep you informed of any overseas holiday travel so you can manage their return.
- Remind employees of your annual leave cancellation procedures.
- Decide how you will deal with pay during self-isolation, eg will it be no pay, sick pay or full pay?
- Create a work contingency plan in case key members of the workforce are absent.
- Ensure managers are aware of coronavirus symptoms so they can spot it quickly.
- Assess whether employees can work from home instead of coming to the workplace.
- Consider postponing any large work-related events, eg conferences.
- Check whether employees are due to go to any large external events, eg training courses and whether attendance is now online or the event has been cancelled.
- If meetings must take place, provide a large room so participants can be at least two metres away from each other.
- Check whether you have a lay off with reduce pay clause in place in the event that you need to close the business temporarily.
- Remind employees of any employee assistance programme available to them if they have general concerns about virus.
- World Health Organization information
- UK Government's Coronavirus (Covid-19): latest information and advice
- UK Government's Stay at home guidance
- UK Government's Coronavirus Action Plan
- NHS Coronavirus advice
Seek professional advice
For professional advice on dealing with any HR matters, speak to a qualified consultant on 0844 561 8149.
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