Coronavirus: employment and health & safety considerations

Key issues:

How to respond and make decisions | Health and safety duties in the workplace | Policy | Business continuity | Travel | Statutory Sick Pay | Contractual sick pay | Other Budget measures | Workplace closures | School closures | Employee suspected of contracting the coronavirus | Employee fear of catching the coronavirus | Protecting employees from risks | Conclusions

How to respond and make decisions

The consequences of a virus to which there is a lack of immunity are that:

• More humans would be infected over a large geographical area than for an ordinary flu virus.
• It will spread rapidly and efficiently from person to person.
• It causes clinical illness in a high proportion of those infected.

The Health & Safety Executive (HSE) which regulates workplaces has emphasised that such an event would primarily be a public health matter with the likelihood that the government would seek to invoke some form of emergency powers to impose specific legal requirements on employers. Whilst this is undoubtedly correct, they have also produced general guidance for employers to use when a pandemic is declared.

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Health and safety duties in the workplace

Section 2 of the Health and Safety at Work etc. Act 1974 (HSWA) imposes a duty on every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees and others affected. The duty is not absolute. The requirement is to take measures which are reasonably practicable to reduce risk.

The law requires an employer to undertake a risk assessment to assess the risks created by the operation of its business. A risk assessment is a careful examination of what would cause harm to people allowing an employer to weigh up whether they have taken enough precautions or should do more to prevent harm.

In particular, Regulation 3 of the Management of Health & Safety at Work Regulations 1999 (MHSWR) requires every employer to make a suitable and sufficient assessment of:

• The risks to the health and safety of their employees to which they are exposed whilst they are at work; and
• The risks to the health and safety of persons not in their employment arising out of or in connection with the conduct by them of their undertaking for the purposes of identifying the measures they needs to take to comply with their duties under the HSWA.

A similar duty is imposed on a self-employed person. Regulation 3(3) MHSWR requires assessments to be reviewed if there has been a significant change in the matters to which it relates and with an event as unusual and unpredictable as coronavirus there would be an ongoing legal duty on the employer to assess risk.

Regulation 6 MHSWR requires every employer to ensure that its employees are provided with such health surveillance that is appropriate, having regard to the risks to their health and safety which are identified by the assessment. In the event of a pandemic flu outbreak this duty would necessitate, for example, the keeping of records of those employees who have contracted the influenza virus, to monitor the time they have been away from work and any other particular features.

There is general guidance from the HSE on what should be involved in a risk assessment. This includes:

• Step 1 - Look for the hazards
• Step 2 - Decide who might be harmed and how
• Step 3 - Evaluate the risks and decide whether the existing precautions are adequate or whether more should be done
• Step 4 - Record your findings
• Step 5 - Review your assessment and revise it if necessary

Any employer with five or more employees is required to record the significant findings of an assessment. In the same way that the duty under Section 2 HSWA is not absolute, the duty in relation to risk assessment is to provide a suitable and sufficient, but not necessarily perfect, risk assessment.

Whilst in the main it should be possible to produce a generic risk assessment, it will be necessary to develop specific plans for certain classes of employees and vulnerable employees. For example, a specific risk assessment may be required for employees with underlying health conditions for whom the consequences of contracting coronavirus may be more severe. Also, pregnant workers are a particular categories of employee to be borne in mind in any temporary reorganisation of this sort and should not be substituted into inappropriate work.

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Policy

It would be prudent to put in place a policy to help to protect staff in the event of a wider outbreak. The policy should include evidence of risk assessment to demonstrate the company’s plans in the event of an outbreak and avoid suggestions an organisation has not done everything reasonably practicable.

As a pandemic has now been declared, it is also prudent to have a policy to monitor the numbers of staff affected by the pandemic on a day-to-day basis, in order to identify the trigger levels for any new contingency plans.

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Business continuity

Businesses may need to close offices or work premises to minimise the risk of the spread of the coronavirus and as such, they may want to prevent employees from attending their place of work. Alternatively, if an individual is diagnosed with the coronavirus, or is asymptomatic, they may be required to self-isolate and be unable to attend work. Both situations have the potential to impact upon the smooth running of operations, the standard of customer service provided and ultimately a business’ revenue and reputation.

Organisations that have already invested in infrastructures that enable agile working across the workforce will of course be best placed for business continuity, although they can still expect a dip in productivity where employees work from home for prolonged periods of time.  However, many businesses do not have such systems in place or do not operate in industries that are apt to agile working arrangements, and they are therefore likely to be hit the hardest if the coronavirus becomes an increasing problem. Looking ahead, we may see employers investing significantly in online platforms and equipping staff with robust online tools to ensure, where feasible, that as many staff as possible can work remotely.  

In sectors where remote working is not a viable solution (such as retail, transport, hospitality, manufacturing and healthcare), employers may consider running operations on revised shift patterns with skeleton staff in key business areas, using such protective clothing and equipment as may be advised whilst at work, to minimise the risk of contamination and importantly to give customers/patients some comfort that measures are in place to keep them, and the staff serving them, as safe as possible. Such measures should be reviewed regularly and should incorporate applicable local law and official health advice. 

Many organisations currently outsource certain business functions to other countries for economic reasons. In the longer term, businesses may need to review their existing workforce structure and recruitment strategy, particularly if such business operations are based solely in a single location. Indeed, we may start to see employers move away from this business model and look to run functions across multiple locations to minimise the risk of an entire business function being put out of operation.

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Travel

Whilst a business can place restrictions on all work-related travel, an employer cannot prevent an employee from travelling for personal reasons, and depending on the circumstances attempted restrictions of this kind could potentially breach discrimination laws. Instead, organisations can request that employees report details of any personal travel and disclose any suspected contact with someone who has or may have the coronavirus. If an employer decides to request that employees submit such reports, this would need to be compliant with the terms and conditions of employment and the business’ policies and procedures, as well as applicable domestic laws – which is particularly important where you have offices/business operations around the globe.

Whilst this would enable the employer to conduct a risk assessment, businesses need to be mindful of their data protection obligations and to recognise that requesting travel information and disclosure on suspected contact with the coronavirus would involve collecting information about an employee’s health, as well as information about the health of third parties.

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Statutory Sick Pay

In the UK, employees are entitled to receive Statutory Sick Pay (SSP) for up to 28 weeks, if they earn £118 per week or more. SSP is currently £94.25 per week and is paid subject to tax and national insurance. SSP is usually payable after a continuous period of sickness of three days (including non-working days) and is payable from the fourth day of sickness.

On 4 March 2020, Prime Minister Boris Johnson, announced that emergency legislation will be introduced, with the effect that SSP will now be payable from the first day of sickness absence, for those who become infected with the coronavirus. It has yet to be confirmed when this change will take effect but we understand the emergency legislation implementing this is expected soon.

In any event, any SSP changes will not benefit self-employed or other workers who are not employees, as they are not eligible to receive SSP. Trade unions have previously called on the government to revise these eligibility requirements, in light of the number of people likely to be affected by the coronavirus outbreak in the UK.

There have also been calls for the government to introduce measures to support low paid self-employed contractors, including those working in the gig economy. In response, as part of the Budget on 11 March 2020, the government announced that those who are not eligible for SSP will be able to access benefits (such as Universal Credit or Contributory Employment and Support Allowance) more easily. It is hoped that this will reduce the risk of such individuals being unwilling or reluctant to self-isolate on a precautionary basis because of the pay implications.  

Another key measure outlined by the government as part of the Budget is a new SSP refund scheme, for businesses employing fewer than 250 employees (as at 28 February 2020).  Eligible employers will be able to reclaim up to two weeks’ SSP for each employee who has been absent from work due to the coronavirus (subject to that employee being eligible to receive SSP). We await confirmation as to when this scheme will be implemented; however, we do not anticipate that this will be imminent. The government has stated that it “will work with employers over the coming months to set up the repayment mechanism for employers as soon as possible” but has emphasised that “existing systems are not designed to facilitate employers refunds for SSP.”

SSP during self-isolation

After much understandable confusion as to what an employer’s obligations are in terms of sick pay for those who are self-isolating, new emergency legislation has been published today that confirms that an individual will in principle be eligible for SSP if “isolating himself from other people in such a manner as to prevent infection or contamination with coronavirus disease, in accordance with guidance published by Public Health England, NHS National Services Scotland or Public Health Wales and effective on 12th March 2020, and by reason of that isolation is unable to work”.

This follows the emergency COBRA meeting on 12 March 2020 after which it was announced that anyone with a “new, continuous" cough or a temperature of at least 37.8C is now advised to self-isolate for seven days, regardless of whether they have travelled to an affected area recently or had any contact with someone who has tested positive for the illness.

The updated guidance, to which the emergency legislation refers, advises seven-day isolation “if you have symptoms of coronavirus infection (COVID-19), however mild, and includes advice that “You do not need to call NHS111 to go into self-isolation. If your symptoms worsen during home isolation or are no better after seven days contact NHS 111 online. If you have no internet access, you should call NHS 111. For a medical emergency dial 999”.

Therefore, those exhibiting symptoms of potential coronavirus and who adhere to the guidance to self-isolate will in principle be eligible for SSP, subject to other qualifying criteria, and there has been a relaxation of the normal requirement to submit a fit note.

It remains the case, however, that those choosing to self-isolate for other reasons (such as fear of potential infection) would not qualify for SSP. We discuss this further below.

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Contractual sick pay

Some employers may provide its workforce with contractual sick pay over and above any SSP entitlement.

The eligibility requirements for contractual sick pay will depend on the terms of an individual’s contract of employment, including as regards what constitutes being unable to work due to sickness and what evidential requirements the employer can insist upon.

In most cases we expect it will be unlikely that an individual’s contract would provide an entitlement to contractual sick pay should they have chosen to self-isolate without medical requirement or in the absence of ant medical advice to do so. Organisations will of course face a potentially difficult judgment call about when contractual sick pay will be payable. The above-mentioned ACAS guidance also suggests that, if NHS 111 or a doctor advises an employee to self-isolate, it would be “good practice” to pay contractual sick pay, but in our view the situation is far more difficult than that.

On one hand, businesses will recognise the potential implications of not providing contractual sick pay to those who are voluntarily self-isolating as a precautionary measure and who may not be in a financial position to take unpaid time off work. They may therefore choose to continue to attend work, potentially increasing the risk of passing the illness on to other members of the workforce as well as customers, patients or suppliers, with knock-on commercial impacts for the business.

On the other hand, the payment of contractual sick pay beyond the terms of contractual entitlement could represent a sudden and significant economic shock to the business that ultimately proves unnecessary but which risks causing significant economic harm with knock-on effects for the workforce.

It is an issue that employers will need to keep under review as the situation develops and we recommend that, where contractual sick pay is paid on a discretionary basis beyond the strict terms of contractual entitlement, it is made clear that the payment is discretionary and subject to ongoing review, and does not create a new contractual right.

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Other Budget measures

A number of other measures were announced in the Budget on 11 March 2020 to enable employers to manage the commercial pressure of the coronavirus outbreak in the UK. These include a discount in business rates for one year for the retail, leisure and hospital sectors and tax payment holidays.

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Workplace closures

If an employer decides to close an office or site and instructs the workforce to not attend work, in most cases the employees affected will be entitled to receive full pay for the duration of the closure, subject to what contractual provisions may apply.

Some employers may be able to rely upon “lay-off” or “short-term working” provisions to manage the commercial pressures of this situation, if their contracts of employment allow for this.

Businesses may be able to lay off employees; that is, to ask employees to take unpaid leave on a temporary basis, if the business cannot provide paid work. Alternatively, short-term working enables an organisation to provide employees with less work and less pay on a temporary basis.

In both situations, the affected individuals are retained as employees, and all employment rights are preserved. In addition, these provisions are only intended to cover short temporary periods, otherwise the affected employees may be entitled to receive a statutory redundancy payment from the business.  

As an alternative to lay-off or short-term working, affected employees, who have at least one month’s continuous service may be entitled to receive a statutory guarantee payment from the business, if they are not provided with a full day’s work or pay during their normal working hours. This will not apply if the employee has unreasonably refused an offer of alternative work or if the employee does not comply with reasonable requirements imposed by their employer with a view to ensuring that their services are available (for example, working remotely).

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School closures

A number of countries have announced the closure of schools and nurseries in an attempt to limit the spread of the coronavirus. As the UK moves into the ‘delay’ phase, there are no immediate plans from the government to call for school closures, but it is certainly a possibility which cannot be ruled out in the coming months. If such a measure is introduced in the UK, a significant number of employees may be unable to attend work whilst they make alternative childcare arrangements.

Affected employees would be legally entitled to take a reasonable amount of unpaid time off work to take necessary action to deal with such an emergency situation. The exact amount of time that an employee is entitled to take off is not specified in the relevant legislation; in normal circumstances it is accepted that one or two days is sufficient time to make alternative childcare arrangements. However, with alternative childcare providers being in increasing demand (and indeed at risk of closure themselves) and with parents potentially reluctant to rely on grandparents for standby childcare due to vulnerability to the virus, the usual day or two may simply not be enough. Employers will need to assess how long is reasonable on a case by case basis.

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Employee suspected of contracting the coronavirus

Employers should be live to the possibility of an outbreak of the coronavirus within their workforce, and should take steps to limit the possibility of an infected individual coming into contact with other colleagues.

One potential option is for employers to conduct mandatory health checks and screening. Such an approach, however, would create significant direct and indirect cost and logistical challenges, may be met with considerable staff resistance, and would involve sensitive data protection considerations. A preferred alternative would be to promote line management vigilance and ensure systems are in place to encourage employees to easily and confidentially disclose if they may have contracted the coronavirus, or are displaying symptoms.

Businesses should ascertain the particular requirements of their current sickness absence policies, and contracts of employment, in relation to sickness absence reporting and evidence of sickness. It would be sensible to remind the workforce of these particular requirements, should they be unable to attend work due to the coronavirus. Given the highly infectious nature of the disease, employers may consider issuing a revision to their current sickness absence reporting procedures, to require the reporting of symptoms and if there is a possibility that they could have contracted the coronavirus.

Organisations should also consider how their existing occupational health facilities might assist in dealing with and supporting members of staff who have potentially been affected by the coronavirus.

Looking ahead, we may start to see employers looking to impose remote/agile working arrangements or relocations to minimise contagion and maintain operations. Close analysis will be needed of employment contract terms and conditions to ascertain what may be requested of employees under existing terms and what may need to be agreed or consulted upon, and the implications and options available in the event of disagreement between employer and employee on revised working arrangements.

In the longer term, we may see employers seeking to make changes to standard contracts of employment and policies to specifically cater for future viruses/widespread diseases.

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Employee fear of catching the coronavirus

Businesses may find that some employees do not want to go to work for fear that this will increase the likelihood of them becoming infected with the coronavirus.

Employers should communicate effectively the practical steps they are taking in line with prevailing local healthcare advice to protect the health and safety of the workforce and reassure them that the matter is being given priority and kept under review. 

Employers could also consider (in appropriate cases) allowing increased home or other agile/remote working arrangements to placate those fearful of attending their usual place of work, or accelerating dates of holiday or other forms of time off work. If an employer does permit such arrangements, careful consideration should be given to the practical implications of this on business operations, and it should be made clear that any accommodations may not be sustainable and will be kept under review.

Employers should consider each individual’s particular circumstances. If an individual is refusing to come into work because they are pregnant or otherwise at high risk (for example, those with weakened immune systems or pre-existing longer term conditions), employers may need to offer more flexibility and be mindful of obligations under the Equality Act 2010.

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Protecting employees from risks

Businesses should remain mindful of their legal obligations to provide a safe place of work, so as to ensure the health and safety of their employees. Looking ahead, we recommend that employers review all working arrangements to ensure compliance with these obligations, in the event of this sort of global health crisis in the future.

For now, we recommend that businesses follow appropriate official health advice, for instance in relation to hand washing facilities in the workplace. Companies should also review their operational arrangements in relation to the cleaning of workspaces and communal staff areas, and the disposal of waste. We recommend that businesses regularly update staff with guidance and details of measures taken to protect the workforce from risk.

Opting for video conferencing or telephone conferencing where possible instead of holding meetings is also likely to be a practical precaution in some industries. Remote electronic working, where feasible, will reduce face-to-face meetings. However, these type of issues are likely to have knock on effects which will also need to be risk assessed, e.g. it may result in the redeployment of workers to unfamiliar tasks or to lone or remote working as a consequence of a depleted staff resource due to sickness absence.

Employers also need to be alive to the potential risk of discrimination towards employees who are perceived to be linked to those countries particularly affected by the virus. There have been some disturbing press reports of assaults on certain members of the community. Employers may wish to consider further highlighting their equality and anti-harassment policies to the workforce and make clear that discrimination and harassment will not be accepted.

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Conclusions

This is a very fluid and developing situation and we recommend that employers proactively review applicable local law and official health guidance for each territory that it operates from.

In the short term, we recommend that employers ensure the following measures are implemented, to minimise disruption:

• Publish employee updates as to the actions being taken to reduce risks of exposure to the coronavirus in the workplace.
• Ensure contact numbers for employees and emergency escalation contact details are up to date.
• Require that staff report any potential exposure to the coronavirus.
• Provide managers with guidance as to how to spot symptoms of the coronavirus and escalation procedures in the event of a suspected or confirmed case in the workplace.
• Provide appropriate facilities such as in relation to hand washing facilities, in line with prevailing official guidance.
• Consider providing other protective equipment/facilities where appropriate following risk assessment.
• Assess and revise business travel and meeting arrangements.
• Review existing terms and conditions of employment as to how they respond to matters such as sickness absence reporting, sick pay entitlement, working hours flexibility, work location and mobility, and short-term lay-off, and provide managers with consistent guidance on how to address queries relating to such matters.

Looking further ahead, employers will need to consider the potential long term impact on their business and what options may need to be looked at in relation to recruitment planning, pay reviews, bonus assessments, contract amendments, and/or reorganisation/redundancy planning, in order to protect the future health of the business.

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Read other items in Health, Safety and Environment Brief - April 2020