Over the past week we have seen an increasing number of employers grappling with the real, as opposed to notional, impact of Coronavirus (COVID-19).

Many employers have had employees return from affected overseas countries and become unwell. Those employees have been advised by the NHS to self-isolate while awaiting the outcome of test results. This has created uncertainty for employers about how they should react.

Public Health England has produced a clear and useful guide which is updated daily, as has the Advisory, Conciliation and Arbitration Service (ACAS). Those guides should be the first port of call for employers. They identify Category 1 countries which are particularly high risk, and Category 2 countries.

In this alert we will tackle a number of the legal questions being faced by employers.

IN DEPTH

If an employee is advised by the NHS or Public Health England Guidance to self-isolate, do we need to pay them?

• As matters currently stand, in most cases this situation will arise when an employee has visited a Category 2 country, as specified by Public Health England, and has become unwell on their return. In this case, the employee is unwell and should receive sick pay in the usual way.

• If the employee has returned from a Category 1 country / area, the employee may not in fact be unwell, but should self-isolate for the current recommended period of 14 days.
  Employers should determine whether or not the employee can productively work from home. If they can, then they should be paid as usual.

• If they cannot work remotely, then there is no legal obligation to pay an employee who is not sick but who cannot work in these circumstances.

• However, the ACAS guidance advises employers to treat any such absences as sick leave in order to prevent a situation where an employee comes to work, potentially spreading the virus, in order to be paid.

• Currently, given the relatively short list of Category 1 countries, it is hoped that this circumstance will be relatively rare and most employers will be able to absorb this cost. However, if the list of Category 1 countries expands, then some employers will need to consider the long term health and viability of the business when considering the approach to take. One option for a smaller employer would be to give employees the choice of being unpaid, or using holiday to cover the relevant period of self-isolation.

• The key consideration for employers is to ensure consistency in how they treat employees and to be objective about which roles can be done remotely, and therefore will be paid in these circumstances, and which cannot, and so will not be.

• It may well be that employees sharing certain protected characteristics will be adversely impacted more than others. Therefore, it will be important to be clear about the decisions made.

Given that many issues are arising as a result of employees taking holiday to affected areas, can we prohibit employees from doing so?

• As a general rule, an employer cannot limit what employees do in their private lives. However, in the current circumstances, it would be reasonable for an employer to introduce a requirement for employees to disclose their travel plans.

• Many people book holidays a long time in advance. If an employee has already booked a holiday to a known affected area, and they still want to travel, remind them of the risks involved and your obligation to protect the health and safety of your employees. Ask them to keep you informed of any health concerns.

• Make sure they know what the policy is in relation to pay if they do have to go into quarantine on their return from holiday, and remote working is not possible.

• On current guidance, this will only apply to those returning from Category 1 countries. Those returning from Category 2 countries only have to self-isolate if they are showing symptoms, and so will be sick for pay purposes.

• However, what if an employee books a holiday to a country or area which has already been identified as affected? An employer whose general policy is to pay full pay to those who are asymptomatic but have to self-isolate could make this conditional on the employee producing evidence that they did not book the trip at a time when the destination was already on the list of Category 1 or 2 countries.

What if an employee goes on holiday to a country which is not on the list of Category 1 or 2 countries but finds themselves unable to return?

• The recent lock down of a resort in Tenerife, and of course the situation of those on board the Diamond Princess, are examples of how this situation could arise.

• In this circumstance, the employee is unlikely to have the equipment with them to allow them to work remotely.

• Given that the employee is in the situation through no fault of their own, it would be optimal to continue to pay them. However, again, that will not be economically viable for some smaller employers.

• For those employers, the reality is that the employee is not available to work and there is no legal obligation to pay them. However, they could be given the option of using outstanding holiday to cover the period.

Can an employer require an asymptomatic employee who has returned from overseas to stay away from work?

• If the employee has returned from a Category 1 country, then they are required to self-isolate even if they are not showing any symptoms. Therefore, an employer should absolutely require the employee to stay away from work.

• However, requiring an employee to stay away from work on return from any other area would be more conservative than provided for in the current Public Health England guidance.

• If the employee can work from home, then for many this is unlikely to be an issue as they can be productive and will be paid.

• However, some employees, even if they can work from home, might object if they consider that it adversely impacts their ability to create as much revenue as they otherwise could do and so, for example, earn as much bonus or commission entitlement.

• The key question will be whether the request to stay at home is a lawful and reasonable instruction. Arguably, the employee might well be able to say that the instruction is not reasonable if it goes above and beyond the advice being issued by the authorities.

• For employees who cannot work from home, if the employer is asking them to stay away from work when the government guidance does not require it, then those employees should be paid as usual.

What can we do if an employee refuses to come to work because of concerns about coronavirus?

• Some employees may be reluctant to attend the workplace, particularly if they have health issues which make them or their family members more vulnerable. Pregnant employees may have particular concerns.

• An employer should listen to the employee’s concerns and, if they are genuine, explore alternative working arrangements with them, such as homeworking, taking a period of annual or unpaid leave or moving to a workspace away from other people.

• However, if the employee refuses to work even after having been offered alternatives and they have no symptoms, then the employer will have to consider its response.

• An employer is unlikely to feel comfortable taking disciplinary action against an employee who has genuine concerns, not least because of the potential for criticism by a wider audience. However, there would be no obligation to pay the employee during a non-productive absence.

What is the position if employees cannot come to work because schools are closed and they need to care for their children?

• Employees are entitled to time off work to help someone who depends on them (a ‘dependant’) in an unexpected event or emergency. This would apply if an employee has children they need to look after or arrange childcare for because their school has closed.

• There is no statutory right to pay for this time off, but some employers might offer pay depending on their policy.

• Under the time off for dependants legislation, employees are only entitled to take a “reasonable” amount of time off; that is the amount of time that is reasonable in the circumstances to allow the employee to address the situation, i.e. to make alternative childcare arrangements.

• Time off required beyond that could be taken as holiday or as unpaid leave.

Some businesses are sending all their people home when there is even a risk of an employee having coronavirus. Should we do so as well?

• It is critical that an employer fulfills health and safety obligations to its staff following the Public Health England guidance.

• Some employers are taking a more conservative approach. However, that does not place any obligation on others to follow suit.

• An employer may be faced by questions from staff about why other businesses are taking more protective measures than it is. The key will be to communicate the steps you are taking to follow government guidance and that employee welfare is of paramount concern. There may come a time when the office needs to close, and you will keep employees updated in real time.