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As concerns over the Coronavirus increase, we are finding that a lot of employers are asking our advice in relation to their obligations towards their employees.
Coronavirus – What is it?
“Coronaviruses (CoV) are a large family of viruses that cause illness ranging from the common cold to more severe diseases.” (World Health Organisation)
It can cause people to suffer flu-like symptoms (e.g. fever, coughing, etc.) which can, in some cases, develop into more severe problems such as pneumonia, and even kidney failure. Those with existing respiratory problems and existing long-term conditions (such as diabetes, cancer, and lung disease), those with weak immune systems, and the elderly are likely to be more at risk.
Employers should not require employees to travel to affected areas for work-related purposes, as this would be in breach of their duty of care to take reasonable steps to protect their employees’ health and safety, and provide a safe place of work.
Employees who have already travelled to an area which becomes affected whilst they are there may find it difficult to return, and we would recommend that employers consider their policies in these circumstances – for example, insisting that an employee uses their holiday allowance to cover any days during which they cannot return to the UK is likely to be unreasonable.
If an employee is in the UK but has recently returned from an affected area (either for work-related purposes or personal travel), employers will need to bear in mind the Government guidance, which is that those who have returned to the UK from an affected area in the last 14 days should self-quarantine, even if they do not have symptoms.
If an employee has returned from an affected area but has disregarded the Government advice to self-quarantine, and is not showing any of the symptoms associated with the Coronavirus, employers would be well advised to require the employee to work at home for the 14 days or, if that is impossible, to suspend the employee for 14 days.
If an employee is suspended in the circumstances above, unless the employee’s contract includes a right to suspend without pay in these circumstances (which would be unusual), the employee must be suspended on full pay.
Similarly, if an employee shows symptoms of the Coronavirus when at work then it might be reasonable for that employee to be suspended on full pay (again, in the absence of any contractual provision which says otherwise).
Absence from work
As well as being absent as a result of their own symptoms, it is also important to note that an employee may need to be absent as a result of caring for a child or other immediate family member who has (or shows symptoms of) the Coronavirus. In certain industries, employees may also not wish to attend work for fear of contracting the Coronavirus.
Employees who are absent as a result of having symptoms of the Coronavirus should be treated in accordance with their employer’s usual sickness absence policy, and will therefore usually be entitled to sick leave and sick pay (either statutory or contractual).
Employees also have the right to a reasonable amount of time off for family and dependents. There is no set time limit as it depends on the situation, and employers will need to be mindful that a longer-than-usual period of time may be deemed “reasonable” in circumstances where a child or other dependent is showing symptoms of Coronavirus.
In the case of employees who refuse to attend work for fear of contracting the Coronavirus, employers will likely need to consider such matters on a case by case basis, taking into account any particular vulnerabilities which such employees may have. If an employee is not vulnerable (and therefore not at higher risk) and is unreasonably refusing to attend work, it may be open to the employer to consider disciplinary proceedings in respect of the employee’s unauthorised absence.
It is not uncommon these days for employment contracts to include a right for an employer to require an employee to undergo a medical examination. If such a contractual right exists, and an employee refuses to agree, this could be a disciplinary issue. On the other hand, employers must bear in mind that many GPs are insisting that those with symptoms of Coronavirus (no matter how mild) do not attend surgeries, so this will need to be considered on a case by case basis.
If there is no contractual right relating to medical examinations, an employer can still request an employee to have an examination, but the employee will of course have a right to refuse, with no adverse consequences.
As stated above, certain people are at higher risk of contracting the Coronavirus, and employers must exercise considerable caution in respect of such employees.
Notwithstanding the Coronavirus outbreak, employers always have a duty towards pregnant employees to carry out a risk assessment. In the current circumstances, if there is likely to be a risk to a pregnant employee, or to their unborn child, an employer may wish to consider alternative working arrangements, e.g. working from home. If this is not possible, the employer may have to consider suspending the employee (on full pay) on the grounds of maternity.
Employers should also remember that they have a duty to disabled employees to make reasonable adjustments and, in the case of Coronavirus, such adjustments could again include agreeing for the employee to work from home, or agreeing a temporary suspension on full pay.
We would strongly recommend that employers consider the working environment they are providing and take extra precautions at this time, e.g. by providing plenty of hand sanitiser and tissues, ensuring workplaces are thoroughly cleaned, and educating employees (which could include adding temporary signage reminding employees to wash their hands thoroughly, and safely dispose of tissues, etc.).
We would also recommend that employees adopt a careful approach when considering their absence policies, disciplinary policies, and any suspensions. These are highly unusual circumstances and employers could find themselves penalised if they impose systems which, under normal conditions, might seem reasonable.
Most importantly, employers should support the Government guidance and encourage self-quarantine, to prevent the spread of infection which could arise in circumstances where employees fear that they will be disciplined or suffer financial loss if they fail to report to work. There will naturally be a fear amongst employers that some employees may falsely report symptoms in order to enjoy some additional paid leave. This is, or course, a risk, and one which undoubtedly has financial implications for employers; but the implications of a culture which forces genuine suffers of the Coronavirus back to work could be far more dangerous.
As stated above, these are highly unusual circumstances and, given that many issues are going to need to be dealt with on a case by case basis, we strongly urge employers to seek legal advice when dealing with any of the matters set out above.
If you require such advice, please feel free to contact Neil Largan or Isobel Willoughby in our Employment Department.