Coronavirus: Plan, Prepare and Respond - Guidance for UK & NI Employers  

As countries continue to respond to the Coronavirus (Covid-19) pandemic, employers are understandably under pressure to ensure they protect their employees, react appropriately and ensure steps taken are in line with national guidance. The UK has announced that it has moved from phase 1 "containment" to phase 2, seeking to "delay" the peak of the outbreak. Notably the approach in the UK is distinct from many other countries across Europe, including Ireland where schools and universities have been closed and indoor gatherings of 100 people or more and outdoor gatherings of 500 or more have been banned until 29 March. The First Minister has confirmed that Northern Ireland will align with the Westminster approach at present.

Decisions on how to safeguard employees, manage the workforce and how to account for any absences will need to be addressed by employers. Below we have set out a number of key concerns for employers and outlined any legal obligations and current government guidance. Two key messages however are that proactive employer communications must be encouraged. Silence is not an option at times which are increasingly concerning for employees. Secondly, in any communication, employers must flag that the situation is very fluid – we are living in what will be unprecedented times for many employees – therefore reassure them that communication will continue.

1. Can we monitor employee's travel? What enquiries can employers make of their employees regarding travel?

It is reasonable to require employees to provide information about their personal travel in view of the employer's duty to protect the health, safety and welfare of all its staff. Any refusal to provide this information upon request may be construed as a refusal to obey a legitimate instruction. This is especially the case in the present circumstances, where there is a global awareness of a pandemic. This issue permits the monitoring of travel on the grounds of health and safety save that it should not be a general expectation which is retained indefinitely.

If an employer requires its employees to provide information regarding travel to certain geographic regions, they will need to ensure they do not discriminate while doing so. Enquiries made about travel to specific countries, or only seeking information from particular ethnic groups might amount to race discrimination. Any requests should be made broadly in respect of the "Category 1" and "Category 2" areas of concern as set out in UK government guidance.

2. Should business travel be banned?

Employers should consider banning travel to those areas identified by the government as areas of concern. Any travel to areas falling within Category 2 should be considered on a case by case basis with the welfare of employees paramount. If any of the business trips are critical, appropriate steps must be taken surrounding medical and travel insurance. In many circumstances, there are technological alternatives that will help facilitate any necessary business meetings e.g. video conferencing etc.

In the event of travel, a risk exists that employees may be quarantined, either in a foreign country and unable to return when planned or upon return to the UK/Ireland. Where travel is necessary, and to the extent possible, arrangements should be made to facilitate remote working.

3. Self – isolation

3.1        Does an employer still have to pay an employee who has been advised to self-isolate?

Government guidance currently sets out that if an employee has been to a Category 2 area and is not showing any symptoms they will be fine to attend work and will only be required to self-isolate should they begin to develop symptoms. If, however, an employee is asymptomatic but has visited a Category 1 area they should self-isolate for 14 days. If symptoms develop they should self-isolate for 7 days from when the symptoms were first identified. If symptoms last beyond 7 days they should contact the NHS 111 helpline.

There is no legal obligation to pay someone who is not sick however it is advisable to treat absence for self-isolation as sick leave and to follow the usual sick pay policy (to avoid the employee returning too soon in order to get paid). On this basis, the UK government has announced that workers will get statutory sick pay from the first day off work, not the fourth, to help contain Coronavirus. The Prime Minister has stated that people who self-isolate are helping to protect others from the virus and should not be "penalised for doing the right thing". It is anticipated that similar provisions may also be introduced in Northern Ireland.

If an employee develops Coronavirus, the employer's usual sick leave and pay entitlements will apply. This also applies to an employee who is asymptomatic but self-isolates and does so because they are given a written notice by their GP and/or after calling the NHS helpline.

To the extent employers can implement flexible working arrangements, employees who are not sick will be able to continue working and be paid accordingly.

3.2        Can employers request employees to work from home?

This is likely to depend on which geographical area they employee has been to and whether the employee is able to work from home. Current government advice in relation to situations where an employee has been to a Category 2 area is that they will be fine to attend work if they have no symptoms, but must self-isolate should any symptoms develop.

Where an employee has indicated that they have travelled from a Category 2 area it remains open to an employer to require the employee to work from home for a 14 day period. In this scenario, the employer should provide the employee with the necessary equipment and IT support. A consistent approach should be taken where employees are required to work from home on this basis. If the employee cannot work from home but is required to stay at home, they will remain entitled to full pay during the period.

3.3        Does an employer still have to pay an employee who refuses to attend work due to fears over catching Coronavirus?

Any concerns from employees should be listened to and if possible, reasonable adjustments such as offering a flexible working arrangement can be made. Employees can also request time off as holiday or unpaid leave, but there is no obligation on employers to agree to this.

Although it is up to the employer whether they wish to treat a self-directed self-isolation in the same way as medically-sanctioned self-isolation, any approach taken must be clear and consistent in all cases. As a minimum, employers will wish to take steps so as to not inadvertently help spread the virus through encouraging employees to return to work if they feel they should stay at home. It is recognised that this may be difficult depending on the nature of the employer's business and in certain circumstances involving the wider workforce other options such as temporary lay-off may need to be considered.

4. Are employers required to pay staff who require time off because their child's school is closed because of Coronavirus?

Currently school closures in the UK and NI due to coronavirus have not been widespread and are not mandated. It is anticipated that school closures will be required in coming weeks. In such cases, employees will be entitled to use their statutory right to time off for family and dependants.  Parental leave also allows working parents the right to take unpaid time off work to look after a child or make arrangements for their welfare. Unless the employer's policy or the employment contract provides otherwise, statutory parental leave or the right to time off for family and dependants remains unpaid. Employees may also wish to avail of annual leave.

Where employees can carry out some (or perhaps all) of their duties from home, arrangements can be made to do this and they will be paid accordingly. Employees should of course be encouraged to make alternative childcare arrangements where possible.

Where employees are unable to work from home employers should explore all options with a view to maintain some level of pay at least in the short to medium term. In such cases should make it clear to employees that the situation remains under review and payment cannot be guaranteed indefinitely.

5. Health and safety precautions

Employees’ health, safety and well-being during a global health emergency like the coronavirus outbreak should be paramount. Employers have a statutory duty of care for people’s health and safety and to provide a safe place to work. Measures will need to be put in place to eliminate any risks and protect employees.

6. Employee Privacy

Employers should endeavour to maintain employee privacy and address individual situations on a confidential basis. Information relating to employees' health is a special category of data under GDPR and can therefore only be processed in specific limited circumstances. Employers must ensure that suitable and specific measures are taken to safeguard the privacy rights of the employee but the processing of this type of data in most cases will be acceptable in order to protect the health, safety and welfare of staff. Employers should ensure Privacy Notices are adequate in this regard and be transparent with employees - it should be clear to employees why the business is collecting their information, how it is being used and what the employee's rights are in relation to the data.

7. Recommended actions for any UK & NI employer:

• Carry out a risk assessment. Have consideration for any factors that could make any employees susceptible to infection or risk i.e. due to business travel. It is necessary to ensure employees are not carrying out duties or practises that will create an undue risk.
• Keep up to date with any Government and public health advice as the situation develops. This will allow employers to pro-actively plan for disruption and adapt these plans to any changes that that develop.
• Ensure you have up to date readily available personal contact information for all employees.
• Inform all staff about the affected areas and require employees to inform their employer of any upcoming travel planned to those areas. There should be clear communication with all employees regarding precautions to be taken with regard to travel and/or coming into contact with someone who is infected.
• Prepare to deal with a situation where an employee becomes ill at the workplace and/or a case of Covid-19 is suspected. Establish procedures requiring employees report if they feel unwell or are absent, and to report possible infection or exposure to the virus within the community.
• Develop a contingency plan. Consider any impact on staff and operations and make a plan to manage any potential risks that may develop in the event of disruption. A key consideration here is reviewing the ability of employees to operate under remote working conditions and giving further consideration surrounding the technological requirements and protocols required to do so. In businesses where remote working is not feasible, alternative measures should be explored to minimise the potential for Covid-19 to be spread within the workforce and to prevent business critical teams being severely impacted – i.e. by separating teams within work sites and/or rotating shifts.
• Review Sick Pay Policies and contracts of employment to establish what you are obliged to pay employees who are absent from work on sick leave and how long you are obliged to do so in order to budget. Other relevant policies should be reviewed, including in relation to annual leave and family leave entitlements.
• Review contracts of employment for lay-off provisions.
• High levels of hygiene in the workplace should be actively promoted, including reminding employees to be extra vigilant.
• Any non-essential business travel should be considered on a case by case basis but employers may wish to halt any travel that is not critical.

It is important that employers recognise that Coronavirus has the potential for significant disruption. There needs to be a strong focus on clear communication amongst the workforce and contingency plans to address any potential disruption must be put in place to minimise direct impact on the operations of the employer's business.

At the same time, all employers have a duty to their employees and steps should be taken to both safeguard them and to provide reassurance in order to avoid panic or confusion.

For any further information please contact Gareth Walls, Partner, or any member of the Employment & Incentives Belfast team.

Date published: 13 March 2020