Update – coronavirus: employment considerations

As this is a fast moving topic, please note that this article is current as at 23/03/20. For further information, please contact Matthew Leake or Amanda Beaumont.

This piece provides an update on our previous report (13/03/2020): Coronavirus: employment and health & safety considerations.

 

Social distancing | Pay | Measures taken to limit spread of the coronavirus | Support for businesses | Disposal of waste in the workplace

Social distancing

On 19 March 2020, during a 10 Downing Street Press Conference, Prime Minister Boris Johnson, urged everyone in the UK to cease non-essential contact with other people and avoid all unnecessary travel, with immediate effect.

Guidance dated 20 March 2020 also states ‘businesses and workplaces should encourage their employees to work at home, wherever possible’.

Updated guidance published on 21 March 2020 states that ‘all those able to work from home’ are urged ‘to do, unless their work is essential’. This guidance also states that public transport should be used for ‘essential travel – for example by key workers to travel to and from work’.

Given these recommendations, employers will need to carefully consider working arrangements for their staff who are required to travel and physically attend for work, and whether it is essential to do so. If staff can work from home, it is recommended that businesses facilitate this as soon as possible.

Businesses are likely to find that staff are now extremely wary of travelling to and from work, and of coming into contact with others whilst at work. Businesses should seek to reassure staff and provide regular updates as to the hygiene measures being implemented in the workplace to reduce the risk of contamination.

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Pay

Changes to statutory sick pay scheme

On 4 March 2020, it was announced that emergency legislation would be introduced, with the effect that Statutory Sick Pay (“SSP”) will now be payable from the first day of sickness absence, for those who become infected with the coronavirus. We await publication of the legislation and the specific arrangements for this.

However, guidance published by the Government on 19 March 2020 states:

We will publish updated guidance as soon as we have more details.

SSP during self-isolation

Further emergency legislation was published on 17 March 2020 which confirms that an individual will be eligible for SSP (subject to usual eligibility criteria) if:

• They have contracted the coronavirus; or
• They are self-isolating in accordance with guidance published by Public Health England, NHS National Services Scotland or Public Health Wales.

This emergency legislation will cease to have effect on 13 November 2020. However, given that it was suggested on 20 March 2020 that social distancing may be required for at least 12 months in order to manage the spread of the coronavirus, and that a vaccine for the coronavirus is not expected until 2021, it is possible that this legislation will be extended.

When should an individual self-isolate?

Guidance from Public Health England (PHE) is being updated on a very regular basis. As at 20 March 2020, PHE advised the following:

• The most common symptoms of Covid-19 are a new continuous cough and/or high temperature.
• If an individual lives alone and develops symptoms, they must self-isolate for 7 days.
• For an individual who lives with others:
  • If they develop symptoms they must self-isolate for 7 days. All other members of the household must self-isolate for 14 days (regardless of whether the other members of the household are asymptomatic); and
  • If anyone in the same household develop symptoms, they must stay at home for a further 7 days from when the symptoms begin, regardless of when the original 14 days started.

There is no need to see a GP or call NHS 111 in order to self-isolate; if the circumstances listed above apply, an individual will be deemed to have been advised by PHE to self-isolate.

If an individual is self-isolating in any of the circumstances set out above, they will be entitled to receive SSP, if eligible. Guidance from the Government states that this will apply retrospectively as of 13 March 2020.

Vulnerable individuals

It remains the case that someone who voluntarily chooses to self-isolate, without displaying any symptoms or who is not self-isolating in accordance with any of the PHE guidance, is not entitled to receive SSP.

However, PHE have deemed the following as ‘vulnerable’ to increased risk of severe illness as a result of the coronavirus:

1. Those aged 70 or over
2. Those under 70 with the following underlying health conditions:
   1. Chronic respiratory diseases, such as asthma
   2. Chronic heart disease, such as heart failure
   3. chronic kidney disease
   4. Chronic liver disease, such as hepatitis
   5. Chronic neurological conditions, such as Parkinsons
   6. Diabetes
   7. Problems with the spleen
   8. A weakened immune system as a result of conditions such as HIV or AIDS
   9. Being seriously overweight
   10. Being pregnant.

Those in the categories above are being advised to “be particularly stringent in following social distancing measures”. However, currently, these people are not being officially advised to self-isolate and as such, are not entitled to SSP merely because they are within these categories.

Government guidance for employers dated 20 March 2020 states ‘employees from defined vulnerable groups should be strongly advised and supported to stay at home and work from there if possible’ and ‘it’s good practice to ensure employees who are in a vulnerable group are strongly advised to follow social distancing guidelines’.

We recommend that employers consult with members of staff who are ‘vulnerable‘ and seek to accommodate remote working for such individuals, where possible. It would be prudent to arrange for vulnerable people to work from home where the nature of the work and technology permits.

Extremely vulnerable

On 21 March 2020, Dr Paul Johnstone, Director at PHE, announced that the following individuals are ‘extremely vulnerable’ and at high risk of developing serious illness as a result of the coronavirus, and should self-isolate for 12 weeks from 23 March 2020:

1. Those who have received organ transplants
2. People with cancer
3. Those who have had bone marrow transplants or stem cell treatments in the last six months
4. Individuals who are taking immunosuppression drugs or therapies
5. Those with severe respiratory conditions including severe asthma and cystic fibrosis
6. People with rare disease or conditions which increase the risk of infection
7. Pregnant women with significant heart disease.

Therefore, individuals who fall into any of the categories above should self-isolate at home for 12 weeks, even if they do not have any symptoms. Given that this advice has been issued by a representative of PHE, it would be prudent to deem this as advice published by PHE, for the purposes of the new emergency SSP legislation. On that basis, if any employees fall within these categories but are unable to work from home during this period of self-isolation, we consider that they should be classed as taking sickness absence, and receive SSP (subject to eligibility).

Fit notes

With effect from 20 March 2020, those who have contracted the coronavirus or are advised to self-isolate will be able to obtain an “isolation note”. This can be obtained via an online form on the NHS 111 website. Employers should expect to start receiving these from staff over the next few weeks, as evidence of their entitlement to receive SSP.  

Measures taken to limit spread of the coronavirus

A number of measures have been introduced by the Government, in order to limit the spread of the virus, which will fundamentally impact upon employers in the UK.

School closures

On 18 March 2020, the Government announced that schools, childcare providers and colleges in the UK will close with effect from 20 March 2020, in order to halt the spread of the coronavirus.

On 19 March 2020, the Government published guidance which confirmed that schools are being asked to continue to provide care for a limited number of children. These include children who are vulnerable and children whose parents are considered ‘key workers’ (that is, critical to the COVID-19 response) and therefore cannot be safely cared for at home.

The sectors considered to employ ‘key workers’ include:

• Utilities, communication and financial services staff – this includes banks, building societies and financial market infrastructure firms.
• Frontline health workers such as doctors and nurses.
• Workers in key public services including those essential to the justice system, religious staff, and public service journalists.
• Local and national Government workers deemed crucial to delivering essential public services.
• Workers involved in food production processing, distribution, sale and delivery.
• Public safety workers including police, armed forces personnel, firefighters, and prison staff.
• Essential air, water, road and rail transport workers.
• Some teachers and social workers.

The Government has not confirmed when schools will re-open.

The above means that, from 23 March 2020, a significant proportion of the UK workforce will be without childcare during working hours. Businesses that employ non-key workers but who have childcare responsibilities will need to consult with these individuals as to how these responsibilities can be accommodated and consider flexible working arrangements where possible. Many individuals may be unwilling to ask grandparents to assist with childcare, as they may be ‘vulnerable’ people and indeed the Prime Minister counselled against this, saying that children should not be left with grandparents or in other groups vulnerable to the virus. Employers should be mindful of the risk of discrimination claims, should any disciplinary action be taken against any employees who are unable to work due to childcare, in such an unprecedented situation.

Closure of particular businesses

Emergency legislation took effect from 2pm on 21 March 2020 which is of major significance to businesses in the hospitality, food and drink and leisure sectors in England.

Restaurants, cafes, bars, pubs (including those in hotels and private members clubs) and workplace canteens must close any premises (including outdoor seating) in which food and drink are sold for consumption on the premises and cease selling food and drink for consumption on the premises. These businesses can sell food and drink to takeaway.

Cinemas, theatres, nightclubs, bingo halls, concert halls, museums, galleries, casinos, betting shops, spas, massage parlours, indoor skating rinks, indoor fitness studios, gyms, swimming pools and other indoor leisure centres must close completely.

The following are not required to close:

• Canteens in hospitals, schools, care homes, prisons and those used by the armed forces
• Services providing food or drink to the homeless

Hotels can also still provide room service to guests.

These restrictions will apply until at least 21 September 2020 and failure to comply with these restrictions is a criminal offence.

Parallel restrictions have been introduced in Wales, Scotland and Northern Ireland.

Affected businesses should contact their insurers, if applicable, to discuss what assistance may be available.

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Support for businesses

On 20 March 2020 the Chancellor of the Exchequer, Rishi Sunak, announced further measures to support businesses during disruption caused by the coronavirus.

Coronavirus Job Retention Scheme

The Coronavirus Job Retention Scheme will enable all UK employers to access support to help continue payment of any employee‘s salary, if the employee would otherwise have been laid off or made redundant as a result of the coronavirus outbreak. The purpose of this scheme is to avoid redundancies.

HMRC will reimburse 80% of such workers‘ wage costs, up to a cap of £2500 per worker per month. At the time of writing there is very little detail as to how the scheme will operate and its implications in respect of a number of employment law issues, and further detailed guidance is awaited. We also await further details of the mechanism and process for reimbursement.

So far, the limited available guidance states that, in order to access the scheme, employers will need to:

• Designate affected employees as ‘furloughed workers‘ and notify employees of this; and
• Provide information to HMRC about these furloughed workers via a new online portal. Further details will be provided by HMRC.

The available guidance also states that “changing the status of employees remains subject to existing employment law and, depending on the employment contract, may be subject to negotiation.” Subject to further detailed guidance and/or further emergency legislation to come, this appears to suggest that, save where an employer may rely on an existing lay-off contractual right, employees’ agreement to be furloughed will need to be negotiated, in particular in cases where the employer does not intend to top-up wages above the 80%/£2,500 cap and therefore where there will remain the risk of deductions from wages and/or constructive dismissal claims. It must be hoped that many employees will readily agree to being designated as furloughed when the alternatives may be the risk of redundancy or entirely unpaid leave.

Furloughed workers will remain employees of the business but must not undertake any work for the business while furloughed. The current guidance to employees says:

It is currently unclear whether there can be the option to part-furlough an employee.

Government guidance states ‘We intend for the Coronavirus Job Retention Scheme to run for at least 3 months from 1 March 2020, but will extend if necessary’.

Statutory Sick Pay relief package for SMEs

UK-based small and medium sized businesses will be able to reclaim up to two weeks’ SSP paid to each employee who receives SSP as a result of sickness absence due to the coronavirus, if the organisation employs fewer than 250 employees as of 28 February 2020. Government guidance dated 20 March 2020 states that further details of the scheme will be provided ‘in due course’.

Other measures

Additional measures include deferring VAT and Income Tax payments, a 12 month business rates holiday, grants for small businesses and some businesses in the retail, hospitality and leisure sectors and business interruption loans.

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Disposal of waste in the workplace

Updated guidance has been published in relation to the disposal of waste in the workplace.

Personal waste (such as used tissues) and disposable cleaning cloths can be stored securely within disposable rubbish bags. These bags should be placed into another bag, tied securely and kept separate from other waste. This should be put aside for at least 72 hours before being put in your usual external household waste bin.

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Conclusions

As we have previously said, this is a very fluid and developing situation and our advice continues to be:

• 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 relate 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.
• Consider which employees will be designated as furloughed employees (and whether there are any contractual considerations or further consents required – further detail of the Job Retention Scheme is awaited.
• 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.