Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The spread of the novel coronavirus (COVID-19) across the globe remains a significant concern in the workplace. Employers are confronting difficult questions regarding how to handle safety and health rules, travel restrictions, leave and accommodation, immigration, and other employment issues. The following Frequently Asked Questions (FAQs) are designed to address some of the more common questions that employers currently face. Employers are also encouraged to consult relevant FAQs put forth by the World Health Organization (WHO) and the United Kingdom’s government websites.
As this is a fluid and rapidly changing situation, please keep in mind that different or additional facts may warrant re-assessment of policies and practices so they can serve the best interest of employees, employers and the community at large.
1. Should an employer restrict travel to all “affected areas” where there have been confirmed cases of COVID-19 infections, as reported by the World Health Organization (WHO)?
Employers with UK-based employees should follow the Foreign and Commonwealth Office (FCO) country advice guidance for the specific destination, and generally follow the Government advice to employers.
Employers should not send employees to areas the UK Government has classified as “Category 1.”
Employees who have travelled to Category 1 areas are required to self-isolate on their return. Employees who travel to Category 2 areas are not required to self-isolate if they are asymptomatic.
2. What should an employer do if an employee shares that they plan to travel to an affected area?
Employers cannot restrict an employee’s personal travel. The Government guidance for returning travellers above should, however, be followed for Category 1 and Category 2 areas. An employer must ensure that returning travellers from Category 1 areas do not return to the workplace for the requisite quarantine period, and may wish to do an individualized risk assessment and determine whether to have employees who have travelled to a Category 2 area stay home or work from home for the current recommended time period.
3. How should an employer handle employees who have family members who have traveled to affected areas?
Employees who have had a family member travel to an area classified as Category 1 should contact the NHS 111 online coronavirus service for instructions before coming into work. For employees with family members who have travelled to a category 2 country, an employer may wish to do an individualized risk assessment and determine whether to have the employee stay home or work from home.
Public Health England health protection teams (HPT) can advise about measures to take if an employee who may have been exposed to a confirmed case has come into the workplace.
4. Can we prevent employees from traveling to affected areas for personal reasons?
Probably not in most cases, but an employer can institute a requirement that employees disclose their plans to travel to Category 1 and Category 2 countries so that they can take steps to ensure health and safety in the workplace.
An employer might be able to refuse or revoke holiday in some circumstances, such as where quarantine upon return would be mandatory or recommended, and the employee’s extended absence would create a business hardship.
Note that Government guidance is subject to change at any time, and employers must stay informed about and prepared for any change in advice. For example, whilst the focus is now on returning travellers, as the coronavirus spreads in the UK and community transmission increases, people may be asked to self-isolate for seven days of “even minor” signs of respiratory tract infections or a fever. The BBC is providing live updates on Government announcements (click here).
5. What discrimination issues should employers address/be aware of?
Preventing travel to affected regions may indirectly discriminate against certain employees, e.g., employees of Chinese ethnic origin, because such a ban would disproportionately affect them. Although it is a defence to a claim of indirect discrimination that the action is a proportionate means of achieving a legitimate aim (i.e., to protect the health and safety of others in the workplace), an absolute travel ban might be disproportionate in the current circumstances, as an employer could ask employees to notify them of travel to an affected area and require them to take extra holiday (or unpaid leave) to self-isolate at home after returning. Also, care should be taken to follow the applicable Government guidance on areas that are Category 1 and Category 2 – note that the whole of China is not designated as a Category 1 area, nor is the whole of Italy. If an employer wishes to be more conservative and proactive and impose greater restrictions, these should be based on current official guidance and be even-handed.
6. What are the employer’s obligations to prevent harassment of those suspected of being infected?
Employers should have anti-harassment policies and training to prevent harassment in order to avoid liability for harassment, as employers will be vicariously liable if their employees harass colleagues, and the employer fails to take “all reasonable steps” to prevent it. Employers may wish to include an anti-harassment reminder to employees in their communications about steps being taken in relation to COVID-19, and refer employees to relevant policies in place.
7. Can employers take the temperature of employees who are coming to work?
This will depend on current recommendations by the Government. If not recommended, it may be unreasonable to request this of employees. Moreover, obtaining such personal health data would require handling as “special” data and should be treated as strictly confidential.
8. Are there any rules on what employers are allowed to do concerning subjecting employees to medical examinations or health-related tests that would apply to an emergency situation involving a communicable illness such as COVID-19?
Employers cannot subject employees to testing for COVID-19. Employers can require an employee who has travelled from a Category 1 area, or has travelled from a Category 2 area and has symptoms, or who has had contact with someone who has been diagnosed, to self-isolate at home for the recommended period. Employers can also encourage an employee in the foregoing categories to seek medical advice and instruct them to remain away from work for the full recommended period of self-isolation unless they are tested and cleared. (See below for guidance on whether this time must be paid).
SAFETY & HEALTH RULES
9. Are non-healthcare employees required to wear respirators or other personal protective equipment?
Not for protecting them from or against COVID-19. In some situations, assessed on a case-by-case-basis, it may be reasonable as a precaution to protect others from them.
10. Can an employer with a public-facing business prevent employees from wearing a surgical mask or respirator?
Yes, but please see response to question #11.
11. What if an employee requests to wear some type of mask as an accommodation?
An employer should have a discussion with any employee making a request related to a medical condition to determine the reason for the specific request. It may be appropriate to seek medical advice about the best approach—an employer should not make assumptions about medical matters. There may be alternative or more effective ways to protect vulnerable individuals.
12. For employers that have events for large gatherings scheduled, should they cancel them?
The government’s plan to address COVID-19 includes a “Delay phase” (which follows from the (“Containment phase”) with potential mandatory social distancing measures such as cancelling large events. Employers should keep informed about the Government’s action plan.
Until this is mandated, it is up to individual businesses to conduct a risk assessment.
13. Has your country’s government issued travel advisories? (If so, please summarize the guidance and provide a link to the government’s website (if applicable)).
See response to question #1.
14. An employee who recently traveled to an affected area (in another country) is having difficulty re-entering your country:
(a) How can an employer help the employee get back into your country?
While the employer cannot directly help the employee, it may support the employee financially or by offering flexible working arrangements. Seek legal and tax advice on specific situations, as there may be tax and other potential consequences to remote working from a different country.
(b) In the case of a foreign employee, will the government’s travel advisories affect an employer’s ability to get the foreign employee back into the country? (Discuss if there are visa-related issues)
Yes, this is likely going to be a problem with employees in Category 1 countries, but it will be based on their travel, not on their nationality per se.
(c) What about employees we are sponsoring to work in the UK?
UK employers that sponsor overseas workers must remain compliant with their sponsor licence duties. For example:
- Report any change to an employee’s place of work, e.g., if you implement home working or if they go into quarantine and work remotely.
- Government has confirmed employers will not need to report any absences due to coronavirus, but this is dependent on the length of the absence.
- Report any change to the employee’s salary if affected due to their absence.
- Report if their responsibilities change due to an inability to travel or attend meetings.
Sponsoring employers should also check the Home Office website for applicable concessions in relation to visas that will be extended due to travel restrictions and other issues.
UNEMPLOYMENT & OCCUPATIONAL RISK LIABILITY
15. Do employer-instituted quarantines or temporary shutdowns or mass layoffs entitle workers to unemployment benefits or severance?
If the workplace is closed by government mandate for a quarantine, employees who are not able to work remotely are entitled to Statutory Sick Pay. Employers should check their policies and contracts to determine whether they would need to pay Company Sick Pay (if applicable). If an employer decides on its own initiative to close the workplace for a temporary period, it would need to keep paying the employees full pay if the employees are able and willing to work. The only exceptions would be if the employees have contracts of employment that allow the employer to lay off employees, or if there are emergency measures put into place by the government. Implementing a layoff or short-time working without such an exception applying would be a breach of contract—employees could claim for unpaid wages through an employment tribunal, and in some cases could claim for constructive dismissal and redundancy pay.
Collective redundancies of 20 or more will trigger formal procedures with mandatory notifications to the government and structured timelines for information to and consultation with employees, before which terminations cannot legally take place. Notice periods or pay in lieu are mandatory. Redundancy payments are also required for those with two or more years of continuous service or a contractual entitlement. Any collective agreements, individual contracts, and policies may include additional requirements.
Unemployed workers may be eligible for benefits.
Where there is a contractual right for lay-off or for short-time working:
A layoff is if an employee is off work for at least one working day. Short-time working is when hours are cut. Employers can lay someone off where there is an express contractual right. Alternatively, there may be an agreement covering layoffs between the organisation and the union, or a national agreement for the industry that the employer follows. Such an agreement has contractual force if it is in the individual employee's contract of employment.
Employees can be laid off without pay where there is a specific term in their contract allowing the employer to do so. When an employee is laid off, they might be entitled to a statutory guarantee payment from the employer, limited to a maximum of five days in any period of three months. The daily amount is subject to an upper limit, which is reviewed annually. Statutory guarantee pay is a nominal amount and is currently set at £29 per day.
There is no maximum length of time employees can be laid off or put on short-time working; however, if the situation carries on longer than is absolutely necessary it may be considered unreasonable and could allow employees to resign and bring a claim for constructive dismissal.
In situations where an employee has been laid off or put on short-time working for 4 continuous weeks, or 6 weeks in a 13-week period with no more than 3 consecutive weeks, an employee can look to resign their position and claim a statutory redundancy payment.
If an employer foresees providing the employee with work lasting 13 weeks that will start within the following 4 weeks of the intention to claim a redundancy payment, the employer can serve a counter notice which will nullify the employee’s intention to claim a redundancy payment.
16. What are an employer’s obligations to pay if an employee has potentially contracted COVID-19 and is quarantined?
An employee with symptoms or diagnosis of illness is entitled to sick pay in the ordinary way. Note that the Government has announced that as part of its efforts to contain the spread of COVID-19, Statutory Sick Pay will now be payable from day 1 of illness or recommended quarantine, and will not require the usual unpaid 3 waiting days. Employers should follow current government guidance on staying at home and medical recommendations on quarantine, and should pay for periods of quarantine as well as sickness. The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 extend statutory sick pay to anyone who is self-isolating to prevent the spread of COVID-19 in accordance with guidance published by Public Health England, NHS National Services Scotland or Public Health Wales, and “by reason of that isolation is unable to work”.
This means that an individual who is otherwise capable of working but who is in self-isolation in accordance with PHE guidance is entitled to Statutory Sick Pay (and may be entitled to contractual sick pay depending on the terms of the contract or applicable policy).
17. In the event of a government-declared quarantine or state of emergency, does your country’s law override contractual provisions and allow for actions that might contradict a collective bargaining agreement (CBA)?
Potentially, but such powers have not currently been implemented.
18. According to your government’s health department, what are the steps that employees should follow to notify the authorities that they suspect or are confirmed to have a COVID-19 infection?
Individuals who are unwell and have symptoms of COVID-19 should call NHS 111 from their mobile or 999 if an emergency (they are seriously ill). For confirmed cases, the management team of the office or workplace will be contacted by the PHE local Health Protection Team to discuss the case, identify people who have been in contact with them and advise on any actions or precautions that should be taken.
19. Can an employer require employees to self-report having a COVID-19 infection?
If they are tested and confirmed positive, this information will already have been handled in accordance with Government guidelines. However, it may be reasonable to ask employees to inform the employer directly of a confirmed diagnosis as well.
20. If one of our employees is quarantined, what information can we share with our employees? Who can we share it with?
Employees are protected by data protection law especially in relation to health data, which is “special category personal data”. Processing such data is limited to specific legal grounds, one of which could be that it is necessary for the purposes of obligations imposed by law in relation to employment (which arguably covers an employer’s health and safety duties). Any communication of health data must be in order to meet the employer’s health and safety obligations and must be necessary and proportionate to this purpose.
In accordance with this, if an employee has been diagnosed with COVID-19, an employer may have a duty either express under new Government advice or implied as part of its general health and safety duty, to warn staff who have been in contact with the employee. The employer should then direct them in accordance with then-current Government guidance (seek medical advice, self-isolate etc.). If possible, such a warning should be given to those potentially exposed without specifically identifying the diagnosed employee or sharing identifying information more broadly than necessary.