One cough and you’re out?

Will there be a dramatic shift in attitudes towards employee sickness-related absence now that offices are beginning to reopen? Traditionally, employees in the workplace often thought it heroic to struggle through the working day. But, will this be in the case in the post-COVID world? We suspect not.

In a relatively short period of time in the UK, we have generally gone from being puzzled by those wearing face masks in public places to now considering such individuals as being thoughtful, protecting others from the risk of germs. In this article, we consider whether attending work whilst sick will now be deemed reprehensible by employers. We also consider employers’ duties towards its workforce in a post-COVID world.

Employers’ duty of care

Going back to the basics, it is relatively easy to ascertain whether an injury is work-related – the injury must arise in the course of employment. But what of infections, and will infection claims become a claims pandemic of its own?

A central tenet of an employer’s duty is the safety of its staff, and a safe place of work - the standard of care being one of “reasonableness”. Since 1 October 2013, the breach of duty by the ‘six-pack’ health and safety regulations do not confer a cause of action, although still assist in demonstrating the standard of care required.

COVID-19 has presented additional responsibilities on employers, with an employer’s obligation to protect employees from the harm of COVID-19, ensuring the completion of risk assessments, implementing social distancing, heightened cleaning regimes, supply of PPE, fixed team working and enabling working from home.

However, any such claim for personal injury arising from exposure to a viral infection would be plagued by difficulties - with issues proving the negligent exposure, the breach of duty, ruling out issues of remoteness, causation and the need to avoid the floodgates to litigation.

Employees would need to prove not only that there had been a breach of duty by the employer in not taking all reasonable steps to ensure their health and safety at work, but also that it was that breach that caused them to contract the illness as opposed to being infected from the many other sources and contacts encountered in day-to-day life.

Nonetheless, it is likely that employers (and colleagues) will not take lightly to the once glorified presenteeism, with employees being asked to stay home at the slightest sign of flu or other potentially transmissible conditions.

Employment law perspective

As employees begin to return to the workplace, employers have to balance their desire for employees to maintain an acceptable level of attendance with their obligation to provide a safe workplace for all employees. It is advisable for employers to clearly communicate with their staff that employees themselves have a duty to look after their own health and the health of their colleagues and to make it clear that anyone experiencing COVID-19 symptoms, or who has been in contact with someone suffering from COVID-19, should not attend work.

Employees who are absent from work due to sickness, which will include employees who have contracted COVID-19, will be covered by their employer’s usual policy on sickness absence which may involve receipt of full pay or statutory sick pay only.

Employers have the right to initiate attendance management or capability proceedings against employees for poor attendance. However, it will only be fair and reasonable to do so in circumstances where employees have numerous, repeated incidences of sickness absence or are absent for a prolonged period of time, neither of which are likely to apply to the vast majority of individuals who contract COVID-19. Given the numbers of people suffering with long-COVID, however, further consideration will be needed by employers to deal with this. Whilst the UK Government is investing £50 million into research into this novel condition and how best to treat its sufferers, it has so far resisted the call for long-COVID to be officially classified as an occupational disease for some key professions, in contrast to some other European countries.

The burden for dealing with absence through long-COVID will fall to be dealt with by employers and their policies and procedures may need to be adapted to accommodate this. The difficulties both employees and employers currently face is that the prognosis is unknown and there is no universally agreed definition.

An employee who attends work despite suffering from COVID-19 symptoms, or knowing they have potentially have been exposed, could potentially risk disciplinary action being taken against them by their employer on the basis that they are knowingly placing their colleagues, and potentially others, at risk.

Comment

Employers should ensure that they are up-to-date with the relevant laws and regulations and follow government guidance. Further, employers should communicate openly with their employees, setting out both the duties of the employer and employee.

With workplaces re-opening, we are likely to see employers encouraging their employees to take a risk adverse approach to illness and work from home should they experience any sickness symptoms.

However, recent research has suggested we may see an increase in employees having substantial periods of sickness absence as a result of the effects of long-COVID. In this situation, and pending any further government guidance on this issue, employers should treat the absence in the same way as any other long-term sickness absence.