COVID-19: Duties and payments to employees

Introduction

Hello and welcome to our employment and labour video. My name’s Paul Griffin and I’m Head of the Norton Rose Fulbright Employment Team in London.

You will notice that this video is slightly different to our usual videos as we are operating in strange times due to the spread of COVID-19. As a result I thought it would be useful if I looked at some of the issues that arise from this. I plan to do a series of short videos on this.

This first video is going to look at the employer’s fundamental duties to employees and issues regarding payments to employees.

Legal duty

The first point to remember is that employers owe a duty of care to take reasonable steps to protect their employees’ health and safety and to provide a safe place and system of work. You obviously  also need to bear in mind all other employment legislation in the actions you take with regard to employees.

I should mention that Acas has produced guidance which is really useful for employers and that that guidance, together with information from Public Health England is something you should constantly refer to  - to make sure that you keep up to date with the advice.

The work place

As much as possible the Government has suggested that if employees can work from home they should do so. Working from home brings other issues that arise and the Employment team at Norton Rose Fulbright will be doing a webinar on these issues and “the new normal” soon – you will be receiving details of that.

What about employees who can’t work from home – how should employers deal with them? If the workplace has remained open then the employer must bear in mind their duty of care to the employees – this means in practice ensuring an increased cleaning regime, provision of hand sanitiser and perhaps plastic gloves and masks if they are in contact with members of the public. You should  also make staff aware that they should notify you if they have any symptoms. You should make it clear that failure to self-certify is a disciplinary offence since it may endanger the health of others.

The other points to be aware of in the workplace are in relation to those groups of more vulnerable employees who have a higher risk of developing COVID-19 and who may need to be absent from the workplace because they have particular health conditions or if they are pregnant. You will have additional responsibilities to pregnant or disabled employees and this will mean consideration of  alternative working conditions or hours.

Absent Employees

One of the key areas of concern is absent employees and the payments that are due to them by you as an employer.

Where an employee has symptoms of the virus then they must be absent from work. These employees will be entitled to sick leave and sick pay. The government announced on 4th March that emergency legislation will be introduced to ensure that statutory sick pay, or SSP, is payable to employees from day one instead of day four. Another change to legislation is that small employers (with fewer than 250 employees) will be reimbursed for any SSP paid to employees in respect of the first 14 days of sickness due to COVID-19. We understand that these provisions will apply retrospectively to cover the period from 13 March and the legislation is still awaited. These will be temporary changes to respond to the outbreak and will lapse when no longer required. If an employer has contractual sick pay then the employee will be entitled to that payment.

But what about employees who are required to self-isolate following public health guidance either as a result of either coming into contact with someone who has the virus or has mild virus like symptoms? For these cases the UK Government has already introduced emergency legislation (the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 ) to clarify that people who are “deemed incapable of work” for SSP purposes includes those who isolate themselves to prevent infection or contamination with coronavirus disease in accordance with guidance published by Public Health England and, by reason of that isolation, they are unable to work. The contractual position is likely to follow suit, but that is not always the case and you should check the contracts. The Acas guidance I referred to has suggested that it is good practice for employers to pay any contractual sick pay because otherwise there will be a risk that employees will come to work in order to get paid, increasing the risk of the virus spreading.

Note that these provisions apply to people who are required to self-isolate following public health guidance and are unable to work. If the employee can work from home during this period then they should be paid normally.

What about those employees who are not self-isolating as a result of public health guidance but due to fear of contracting the virus? If an employee goes into self-isolation and does not seek medical advice and has no grounds for self-isolation then the employer does not have to pay them. You could issue notice asking them to take it as paid leave (although there are notice requirements) and if they refuse to do so they should take it as unpaid leave. As a last resort, the employer can take disciplinary action against them for unauthorised absence.

Employers are now going to be faced with a new group of employees who find it difficult to work as a result of schools closing and people facing child care issues. Employees who find themselves with childcare issues will need to rely on the provision to take time off to look after dependants under section 57A Employment Rights Act 1996. However, this only covers emergency care and is not there for the long term. There is no statutory right to payment for this period of leave and so employers must form a view as to what payments are going to be made. For the long term for these employees the employer could have a range of responses: Allowing staff to work from home on full pay; adapting the hours required of staff to work from home; take the period as unpaid leave; take paid holiday leave; or apply for some form of parental leave. Reducing hours and therefore pay will require an agreement to change the terms of an individual’s contract and I will look at that in my next video.

So what steps should you as an employer be taking?

• You should clearly be continually educating and updating your employees and providing  guidance to them on the symptoms and precautions which should be taken to prevent the spread of the virus.  You should also make it clear that failure to follow any hygiene rules could amount to a disciplinary action.
• You need to check that you are providing a safe working environment for employees.
• You need to encourage self-isolation and have a clear policy of the  payments that should be made to those employees.

Hopefully you have found this video useful.  I will be issuing another one next week but if you’d like any more information, or have any questions, then please don’t hesitate to contact us and we will also keep our blog (the Global Workplace Insider) and the Norton Rose Fulbright website up to date with any developments in this area.

Thank you