COVID-19 and Employment Law

COVID-19 and Employment Law

One of the biggest issues around the Coronavirus outbreak has been the need to “self-isolate” and dramatically reduce opportunities for COVID-19 to spread. This move to self-isolation has resulted in an estimated 20% of the UK workforce working from home. This represents one of the biggest, most disruptive shifts in working patterns ever seen since the Second World War.

For employers, this has been a fast-moving and often confusing time as issues arise which have tested standard policies and procedures, suitable for normal patterns of working. With the situation changing on the ground daily, it’s little wonder companies are rushing to keep up with both advice to keep their staff protected while ensuring as high as productivity as possible to keep the business moving.

At Carter Bond, as employment law specialists, we’ve summarised the key employment law issues to consider with regards the Coronavirus.

Employers’ obligations and COVID-19

Employers have a duty of care to their employees with respect health and safety and maintaining a safe workplace free from risk. With COVID-19 comes the additional risk of infection from other employees who may be exposed and subsequently the office environment.

Equally, employees are obliged to comply with any updated health and safety guidelines brought in by the company as a result of the changing situation.

Employers must continually look at undertaking risk assessments to assess the changing situation as it unfolds and not put staff members in harm’s way, unnecessarily.

There are also a number of practical measures which may be prudent to implement:

  • Roll out guidelines for remaining free from infection, including hand-washing guidance and provide appropriate levels of soap, hand sanitisers, etc
  • Keep communicating with employees working from home to respond to HR-related issues which may arise from being away from the office
  • Assigning a dedicated individual to track the latest guidance and developments and ensure this is communicated to employees
  • Put in place a process should an employee have a suspected COVID-19 infection to deal with this efficiently should it happen
  • Reduce and cancel business travel and commuting as far as possible
  • Add precautionary measures for visitors to the office or workplace
  • Providing the necessary technology, such as video conferencing, to allow employees to reduce face-to-face contact or work from home

Employees and data protection

Considering the global nature of the infection, it may be prudent for employers to seek information from staff who have travelled as to where they have been and the extent to which they may have been exposed to the virus. These requests for information fall into the realm of data protection and GDPR.

As with most areas of the law, this will come up against the legal duty employers have under Health and Safety legislation which obligates employers to ensure employees can operate in a safe workplace free from the fear of being subject to infection. Employers should take all steps necessary as outlined above.

With this in mind, it may be necessary to request and hold data relating to an employee’s movements in furtherance of their health and safety obligations.

There is a general obligation for employees in the UK to respond to reasonable requests by the employer with the penalty of disciplinary action should they not comply. The data collected and held must be processed according to relevant data protection legislation.

It is a complex area as the subject of whether an employee is suffering from an illness or disease falls under the category of sensitive personal data which brings with it a higher level of proof and obligation around the processing of such data.

The employer also needs to demonstrate the collection of the information is necessary to weigh up the risks to other employees as part of its health and safety duties.

What this means from a practical perspective is that employers would be able to reasonably ask employees where they had travelled for a certain period, but not ask staff members whether they have contracted the virus or supply medical proof. The duty to assess the risk to the broader workforce is balanced against the privacy of the individual.

What happens with paying wages if my employee is off sick or self-isolating as a result of COVID-19

If a staff member needs to take sick leave as a result of infection from COVID-19, under usual circumstances, they would only be required to pay statutory sick pay at £94.25 per week. However, under measures announced by the government, employers will be reimbursed for any sick pay paid during the first 14 days of absence. This will be paid from the first day an employee is required to self-isolate as a result of COVID-19 infection.

The same situation also applies to an employee who is not showing symptoms of COVID-19 but has been told to self-isolate and is required to stay away from the office.

If an employee chooses to self-isolate even though they are well and are not doing on medical advice, then they will not be entitled to statutory sick pay. It’s necessary to take into account individual circumstances when assessing whether this situation entitles the employee to sick pay under any company policy. If there are no mitigating reasons, this even may be a grounds for disciplinary action. However, again, it’s worth looking into the reasons why an employee has chosen this course of action.

If an employee is well but, as an employer, you’ve instructed them to work from home as a precautionary measure rather than under medical advice, they are, of course, entitled to full pay.

What happens with paying wages if I need to close the office

Despite the government lockdown, there is no requirement to close workplaces, although non-essential shops and pubs, libraries and other public places have instructed to close. However, the government has suggested that companies encourage their employees to work from home.

If the office closure is a result of a suspected COVID-19 infection within your office, Public Health England has a team that will advise on the next steps and guide through the necessary actions to be taken.

If the office is closed, companies are legally obligated to continue paying full wages unless otherwise outlined in the employment contract. As an employer, you may also request employees work from home and, subject to providing enough notice, require employees to use paid holiday over a specified period.

Some employment contracts give employers the right to “lay off” employees without pay for a temporary period of time or even ask employees to agree to this voluntarily.

In the first instance and to avoid any confusion, please seek advice from an employment law specialist. The situation is fluid and it is so easy for an employer to make a misstep which could possibly come back to bite you.

If you require any assistance on the issues discussed above, please contact Carter Bond on 020 3475 6751 and we’ll be happy to advise you.

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