MNI COVID 19 Factsheet- Managing staff health, pay, leave and absence
COVID-19: Managing staff health, pay, leave and absence
As the current situation regarding coronavirus evolves, we will do our best to keep this information updated from reliable trusted sources. However, employers must also keep up-to-date with guidance from government, the Public Health Agency, and the Labour Relations Agency (“LRA”) – links included below.
Latest Government updates;
- Following the COBRA meeting on 16/03/2020, the Prime Minister has said people should avoid any non-essential contact including; travel, work from home were possible, and to not visit any social settings ie pubs/restaurants.
- He said that the peak of the virus is coming fast, and quicker in some areas such as London.
- A measure the Government is implementing is that if you or a person in your family has either a persistent cough or a temperature, you should self-isolate for 14 days.
- The Prime Minister also stated that by the weekend, the Government will ask vulnerable people including people over 70 and those with prior serious health conditions to self-isolate for 12 weeks.
Do employers have to pay employees who are self-isolating?
Firstly, the employee should check with the Public Health Agency whether or not they need to self-isolate.
There’s no legal or statutory right to pay an employee who’s not sick, but cannot work because they:
- have been told by a medical expert to self-isolate
- have had to go into quarantine
- are abroad in an affected area and not allowed to travel back to the UK
It’s good practice for an employer to treat self-isolation as sick leave and follow their usual sick pay policy or agree for the time to be taken as holiday. Otherwise there’s a risk the employee will come to work because they want to get paid. If they have the virus, they could spread it. But the employee must tell their employer as soon as possible if they cannot work. It’s helpful to let employers know the reason and how long they are likely to be off for.
Employees who can continue working from home
If employees are self-isolating as a precautionary measure, depending on the nature of their role, they may be able to continue working from home. In such instances, employees would continue to receive full pay because they are still fulfilling their duties to their employer.
Employees who cannot work from home and have no symptoms
There is no automatic right for employees who are self-isolating and cannot work from home to receive sick pay, unless they are showing symptoms. However, Labour Relations Agency guidance states that if employees have reason to believe that they have been exposed to the virus or have had to go into quarantine, employers should “follow best practice” and treat it as sick leave or agree that the time off will be taken as annual leave.
Employees who develop symptoms
If employees who are self-isolating develop symptoms and become unwell, they will usually be entitled to either company sick pay or statutory sick pay (“SSP”) in the usual way.
Employees returning from an affected area
Employers have a duty to ensure the health and safety of their workforce. Therefore, it is understandable that employers are concerned about employees returning to the workplace after they have visited an affected area. If employers knowingly permit employees who have been advised to self-isolate to come into work, they could be in breach of their health and safety duties, especially to other high-risk employees such as those with underlying respiratory conditions or those who are pregnant.
Employers should keep a close eye on the emergency legislation being introduced and also on NI specific guidance and/or legislation that may follow.
What can we do about employees who are afraid to come to work because of Coronavirus?
As a general tip, employers should encourage open dialogue with their staff where concerns can be voiced; this will help businesses assess if concerns are genuine and reasonable. Particular caution should be exercised in relation to high risk employees. In these circumstances, employers should meet with the employee and discuss possible flexible working arrangements such as homeworking.
If employees refuse to attend work due to genuine concerns about contracting Covid-19, you may consider letting employees take unpaid leave or using their annual leave. Ultimately, it is a balance of taking action that will be least disruptive to business needs whilst also trying to maintain good working relationships with employees.
If an employee refuses to attend work, technically this could constitute an unauthorised absence which may be dealt with via disciplinary action. However, we recommend that specific legal advice is sought in this scenario.
Can we make an employee stay at home who has just returned from an affected area?
Employers have a duty to ensure the health and safety of their workforce. Therefore, it is understandable that employers are concerned about employees returning to the workplace after they have visited an affected area. If employers knowingly permit employees who have been advised to self-isolate to come into work, they could be in breach of their health and safety obligations, especially to other high-risk employees.
Employers should check their policies and contracts to see if there are any provisions that lawfully enable them to require employees to stay at home. If employers are making employees stay at home, generally the employees should be paid as normal, unless there is a contractual provision to the contrary or they are declared unfit for work and will instead receive sick pay (see below).
What information can employers communicate to their workforce if an employee tests positive to coronavirus?
Communicating information about an individual’s health will constitute processing of sensitive personal data under the GDPR. In accordance with Article 9 of the GDPR, employers must satisfy an additional lawful basis for processing this personal data.
It is unlikely that one of the additional processing grounds under Article 9 would be appropriate in the circumstances. Therefore, employers will need to ensure that any communication does not actually identify the individual.
At the same time, it is important that employers provide a safe working environment for the rest of the workforce. Notifying other employees in the same location as the infected employee would be necessary step to ensure that those in close contact with the employee can take precautionary measures and get tested for the virus.
Depending on the size of the workforce, it is possible that other employees will be able to work out which employee is suffering from coronavirus without the employee actually identifying them. Nevertheless, it is important from a data protection perspective that the employee’s identity is not divulged by the employer unless the employee has given their explicit consent.
Do we have to cover Statutory Sick Pay?
The UK Government has agreed to cover the costs of 14 days of Statutory Sick Pay (SSP) per employee, for those off work due to coronavirus, in small and medium-sized firms. This may well come via HMRC BUT this is not yet confirmed. However, we do know:
- This will cover all companies up to 250 employees as at 28 February 2020
- This will come into effect from day one of sickness, rather than day four
- Employers will be able to reclaim this expenditure; this is a rebate – they are still working on the most appropriate repayment mechanism
- Employers should maintain records of staff absences and payments of SSP, but employees will not need to provide a GP fit note
- This will kick in the day after the regulations on the extension of Statutory Sick Pay to those staying at home comes into force (This is expected to be announced week commencing 16 March 2020)
What can businesses do if faced with a coronavirus outbreak in the office?
- Tell staff there’s a possibility the workplace could close
- Update any policies or procedures (eg sickness absence, dependent care leave, flexible or home working), which may be affected by an outbreak of coronavirus such as the requirement to obtain a fit note from a doctor
- Contact The Public Health Agency immediately
- Contact a hazmat company to clean and disinfect the workplace
- Inform other employees of potential signs and symptoms
- Appoint one person to communicate to employees
- Use multiple communication channels, from digital communications to physical handouts
- Restate the sick leave policy and encourage employees to take time off if they start showing coronavirus-like symptoms
- Consider creating a special policy to tackle the situation as a precautionary measure
- Introduce a business continuity plan that incorporates flexible working
- Allow employees to work from home. If individuals have only worked in office settings then managers need to communicate their expectations for remote workers e.g. establishing how they want to communicate, if there are organised times they want to communicate and what they expect each day
- Schedule weekly meetings in efforts to include remote workers so that employees feel involved
- Explore salary reduction or unpaid leave as an alternative to termination of employment, where business has slowed down working arrangements wherever possible
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