Coronavirus – FAQs

18 March 2020

The situation regarding the spread of coronavirus is constantly evolving and naturally employers have been contacting us with lots of queries about how to manage the situation. Here we have put together answers to some of the more frequently asked questions that we have received so far.

If employees are self-isolating, do they need to receive pay?

The current guidance from Public Health England is that an individual should self-isolate if:

1. they have coronavirus
2. they have coronavirus symptoms (a fever or a new, continuous cough)
3. someone in their household has coronavirus symptoms
4. they’ve been told to self-isolate by a doctor or by NHS 111

If someone has symptoms, everyone in their household must self-isolate for 14 days. Those who live alone must self-isolate for 7 days.

If the employee or worker is self-isolating because they have been advised to do so in accordance with the Public Health England guidance, then they will normally be entitled to at least Statutory Sick Pay (SSP), if they are eligible. This is because this situation has been specifically included within the definition of ‘incapacity to work’ in the new regulations issued in response to the virus.

SSP will be payable from day 1, rather than from the fourth day as was the case previously. The Government has also committed to reimbursing small businesses (i.e. those with under 250 employees) for up to 14 days per employee where the SSP has been paid in relation to the coronavirus.

If an employee is entitled to contractual sick pay under their employment contract, then it is likely that they will be entitled to receive this whilst self-isolating.

Normally an employer would expect to see a medical certificate for absences of 7 days or longer. In the current circumstances, employers are being expected to ‘be flexible’ on this.

What about if we have chosen to send the employee home? 

If an employer chooses to send someone home, rather than it being the employee’s choice, then the employee would normally be entitled to their normal full pay.

However, if you have sent them home because they have symptoms, then in the current circumstances we would suggest treating them as sick in the first instance.

If someone comes in to work with symptoms, could we discipline them for failing to follow instructions and/or not considering the health and safety of others?

This could be a disciplinary matter, although whether this is the best course of action would of course depend on the circumstances. If you do decide to take disciplinary action, you would of course need to wait until after their isolation period has ended before addressing the matter, as otherwise they would not be able to attend a hearing.

What if the employee has chosen to self-isolate in circumstances where they do not have to?

If an employee has chosen to self-isolate but they are not one of those who have been advised to do so by the Public Health England guidance, then you will need to consider the reason for them wanting to self-isolate. If they have a vulnerability or health condition which puts them at greater risk, then you will need to consider whether they can work from home, and if not, whether there is medical evidence that they should not attend work for health reasons. You could consider whether to offer annual leave or unpaid leave, if there is no entitlement to sick pay.

We are worried about employees abusing the system and taking time off when they don’t need to. What can we do? 

Employers would be wise to tread carefully here. Most employers have disciplinary procedures which they could use to deal with malingering. However, it may not be easy to know whether employees are genuinely needing to self-isolate, as they will not necessarily be getting tested for the virus. There may also be some people who are very anxious about the virus and are absent for that reason. Disciplinary action will probably be a last resort and for extreme cases only.

If schools close or employees have dependants who need help, are they entitled to time off work?

Any employee would be entitled to a reasonable amount of time off to deal with an emergency involving a dependant. This can include where there is a disruption to childcare arrangements. The time off would normally be unpaid, unless the employer has a policy of offering a certain amount of paid leave, or if the employee is self-isolating (as discussed above). It may be that some employees are able to work from home, although this is not always practical when they are also having to deal with childcare. Where working from home is not possible you may want to consider allowing them to take some annual leave as an option, if they do not want to take unpaid leave.

Do we have to offer everyone the ability to work from home?

The Government is currently advising everyone to try and avoid unnecessary social contact. If you have staff who can work from home, then that is fine, but that will not work for every job. If you cannot offer working from home then there may be other measures you could consider, such as changing start and finish times to avoid rush hour, and/or minimising face to face meetings.

All employers have a duty to take reasonable care of the health and safety of their staff, so you will need to make a decision based on your particular situation. If you need advice on homeworking or developing a solution that works for your business, we can help.

If our employees cannot work from home, what can we do to try to encourage a hygienic working environment?

Employers can keep up-to-date with guidance on measures that can be taken to slow the spread of the virus, and can ensure that employees are aware of what they are expected to do in the workplace, to lessen the risk to their health and others. NHS health guidance is available: https://www.nhs.uk/conditions/coronavirus-covid-19/ and there is also guidance from Public Health England https://www.gov.uk/government/organisations/public-health-england and the World Health Organisation https://www.who.int/docs/default-source/coronaviruse/getting-workplace-ready-for-covid-19.pdf?sfvrsn=359a81e7_6. Employers could use their disciplinary procedures if employees were to purposely flout reasonable employer instructions. Any complaints and grievances from staff should be listened to.

If you are dealing with an employment law issue relating to the coronavirus, then we can help. Please call us on 01243 836840 for a no obligation chat, or email us at [email protected].

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.