All employers will clearly be concerned about the impact on their staff and business of the COVID-19 outbreak. Employers will be formulating contingency plans to facilitate remote working where possible and to deal with possible resourcing and supply chain issues. Communication with staff on travel and absence policies along with advice on hygiene and support will be key.
Employers should ensure they are monitoring the government's daily updated advice; a list of all its relevant publications is here. Specific guidance for employers covers practical steps to take where individuals have returned to the workplace from other affected countries or have tested positive for the virus. At the time of writing, Public Health England is advising that returning travellers – even those without symptoms – self-isolate if returning from specified high risk zones, and those returning from other listed countries self-isolate if showing symptoms. Employers should also refer to Acas guidance covering health and safety precautions, entitlement to sick pay, dealing with sick or concerned staff, and workplace closure, as well as the World Health Organisation's guidance for employers.
The updated Acas guidance now reflects comments made by Health Secretary Matt Hancock that statutory sick pay should be available to everyone who is advised by NHS 111 or a GP to self-isolate despite having no symptoms (in addition to those who are off sick with symptoms). Specific regulations have been made which have the effect of deeming asymptomatic individuals who have received written notice to self-isolate to be sick for these purposes. The government has also announced emergency legislation to temporarily extend statutory sick pay to cover from day one of absence rather than day four, seemingly just in respect of COVID-19-related absence. Employers should of course also comply with any pay obligations in contractual absence policies and will want to ensure that their absence policies do not discourage appropriate self-isolation. Where employers choose to instruct individuals to stay at home when this is not medically advised, they will normally need to provide full pay even if it is not possible to require the individual to perform their work remotely.
Employers may also face requests to work remotely from concerned but well employees, who haven't travelled to the listed countries. These should be handled sensitively bearing in mind that certain individuals may have more reason to be concerned, eg pregnant employees or those with pre-existing conditions that put them at greater risk of developing severe illness (who may also qualify as disabled and therefore be entitled to reasonable adjustments). It may be appropriate to carry out a specific risk assessment if aware of staff who may be at additional risk. Options to consider include remote working, unpaid leave, and holiday. Employers may also need to take steps to prevent employees being subjected to racial harassment arising from the outbreak.
The government is reported also to be considering emergency legislation which would allow skilled, experienced or qualified volunteers up to four weeks' leave from their usual jobs in order to work temporarily in the NHS or care homes.
Update 11 March 2020: the Chancellor of the Exchequer, Rishi Sunak, has announced that for businesses with fewer than 250 employees, the government will reimburse in full the cost of 14 days of statutory sick pay (SSP) per employee (who is eligible for SSP due to COVID-19). A repayment mechanism will be set up as soon as possible. Employers should maintain records of staff absences, but should not require employees to provide a GP fit note. The scheme will commence "from the day on which the regulations extending SSP to self-isolators come into force" (see here). The position already seems to be that asymptomatic individuals who have received formal written medical advice to self-isolate are eligible for SSP; it is not yet known what any proposed additional regulations will provide, but it may be to clarify the type of medical evidence that will be sufficient. Emergency legislation is expected to be put before parliament next week.)
The Herbert Smith Freehills hub on navigating the COVID-19 outbreak is here.
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