Coronavirus (COVID-19) FAQ: advice for employers and employees
LOUISA COPSEY >
PartnerFri 20 March 2020
As Coronavirus (COVID-19) continues to cause worldwide uncertainty and disruption, our employment team are receiving more and more enquiries relating to an employee’s rights when in isolation. With government guidance changing on a daily basis, the regulations relating to statutory sick pay (SSP) are widening to account for this unprecedented period.
On Monday 16th March 2020, the government issued guidance on social distancing measures we should all be taking to reduce social interaction between people in order to reduce the transmission of coronavirus. They advised that employees from defined vulnerable groups should be strongly advised and supported to stay at home and work from there if possible.
This has led to many businesses whose employees are able to work from home taking the decision to roll out a firm-wide home working as a precautionary measure.
If you are unable to work from home, it is important to understand your rights as an employee or an employer. We have set out below some scenarios that you may find yourselves facing over the coming weeks.
Q: My employer has sent me home from work to self-isolate, what pay am I entitled to?
A: If you can continue to work from home, then you will be entitled to your normal rate of pay (dependant on any term to the contrary in your employment contract).
If you are not able to work from home, it will be dependent on the circumstances behind the decision taken by your employer to send you home.
Example 1: Employer suspends for reason falling within government self-isolation advice
Where an employer is considering suspension due to government advice to self-isolate then it is likely that the employee’s absence will fall within the new deemed incapacity rules for SSP.
Regulation 2 of The Statutory Sick Pay (General) Regulations 1982 was amended by the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 (Coronavirus Amendment Regulations). This amendment introduced the provision that a person is deemed incapable of work where he is:
‘‘isolating himself from other people in such a manner as to prevent infection or contamination with coronavirus, in accordance with the guidance published by Public Health England, NHS National Services Scotland(d) or Public Health Wales(e) and effective on 16th March 2020; and by reason of that isolation is unable to work.”
Therefore, if your employer suspends you due to the government’s self-isolation advice and you are unable to fulfil your job role by working remotely you will be entitled to SSP.
Example 2: Employer suspends for reason falling outside of government-self isolation advice
If an employer takes a decision to suspend you to avoid the risk of infection, and you do not fall within the category of individuals who are being advised through public health guidance to self-isolate, you will not be entitled to SSP. This is because you are not unfit to work and therefore do not fall within the provision referred to above.
Instead, there is an implied term in the employment contract that, where an employee is willing and able to perform work in accordance with the contract, the employer has the obligation to pay the employee their wages. This means that if an employer suspends you for a reason falling outside of government advice, you will be entitled to your full normal pay, assuming there is no contractual provision in your contract to the contrary.
Q: I have been told by a medical professional or government guidance to self-isolate, am I going to be paid?
A: If you are well enough and have not been diagnosed with coronavirus, it may be that you are able to work from home and will be entitled to your full normal pay. If you are unable to work from home because you are too unwell, or your job is not appropriate for remote working then you will be deemed incapable of working and therefore be entitled to SSP.
Q: Can I use my holiday to cover any time I have taken off?
A: Under normal circumstances, workers that wish to take annual leave during sickness absence rather than receive SSP or nil pay are entitled to do so. This is the choice of the employee and the employer cannot compel the employee to do so.
Q: I have a cough and usually, I would attend work but have been told not to. Am I entitled to pay?
A: If you have any symptoms of the coronavirus you must follow government guidance and self-isolate. This means you will be treated as being on sick leave and be entitled to your contractual sick pay or SSP, depending on the terms of your employment contract.
Q: What will happen if the government imposes mandatory isolation under the Health Protection (Coronavirus) Regulations 2020?
A: If an employee is not able to work from home but the government imposes mandatory isolation, they are likely to be regarded as not able to work, meaning that they would not be entitled to their full pay.
That employee will be forced to abstain from work because of compulsory detention so is likely to be entitled to SSP.
If the employee has the facilities to work from the location to which they are quarantined, then they should be able to fulfil their role and be entitled to full pay.
Q: My employees do not want to attend work for fear of coronavirus. What can I do?
A: The first thing to do is to listen carefully to your employees’ concerns. The simplest solution would be to allow them to work from home, if possible.
If the employee is not able to work from home, you should consider offering them to take time off as holiday or unpaid leave.
An important thing to consider in these sensitive situations is discrimination. The employer will need to consider:
- the current public health advice,
- the specific reason for the employee’s concerns over attending work
- whether it would be discriminatory to refuse home working,
- Whether to take disciplinary action,
- Or whether to withhold pay due to the employee's refusal.
If there is no risk of discrimination, and the public health advice is such that the employee could reasonably be asked to continue to attend work, then it is possible that the employee could be investigated for misconduct for their unauthorised absence. If their absence is unauthorised then the employee is unlikely to be entitled to pay, as they are not willing to attend work.
If an employee suffers from severe anxiety, their condition could be worsened by travelling or being in public places due to the increased risk of contracting coronavirus. If their anxiety prevents them from attending work, it is likely that they would be regarded as being on sick leave and therefore entitled to SSP.
Such severe anxiety could be regarded as a disability. In this situation, and dependent on the determination of a disability, the employer should seek medical advice from the specialist treating the employee and consider what adjustments should be made to assist the employee in continuing to work.
Q: My children are off school; am I allowed to work from home?
A: Normally, it would not be appropriate for you to work from home whilst also having to look after your children. In usual circumstances, you may assert your right to time off to care for a dependant. This time off is unpaid unless your contract provides otherwise. Given that the school closures could last a relatively long time this may not be an option for many parents.
As all schools have closed, this will be a dilemma many parents in the workforce are facing in unprecedented circumstances. It may be that employers take a more relaxed approach to at-home working whilst providing childcare, as a blanket ban would result in a large proportion of the workforce being prevented from performing their duties.
It is likely that many employees will be able to organise their time, so they are able to complete some or all of their duties at home whilst also looking after their children. If it is possible, the employee should agree that arrangement with their employer rather than having to assert their statutory right to have unpaid time off.
In this difficult time, it is important to understand your rights and have a clear plan, whether you are an employee or an employer.
If you are worried about your entitlement to SSP or your full pay, we can help. We are committed to helping you in this difficult time. Please do not hesitate to contact our specialist employment solicitor Louisa Copsey on 0207 400 7745 if you have any questions or concerns.
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