Do you employ staff and worry about the implications of restricting the potential spread of the virus amongst your workers? You're not alone - so here are some questions and answers to help you plan to minimise the risk in relation to the current Covid-19 issues.
Cases of Wuhan novel coronavirus (now called Covid-19) have been confirmed in a number of countries other than China including Thailand, Singapore, Japan, the USA, Canada and France. The first cases of Covid-19 have also now been confirmed in the UK. While the coronavirus is a type of virus that is fairly common across the world, Covid-19 is a new strain of the virus. Associated symptoms can include a fever, a cough and difficulty breathing. There have been a number of deaths and severe cases in China although it is reported that symptoms are mild in the majority of cases and the deaths occurred where the person had a pre-existing illness or condition.
Employers should consider what they can do to protect their business and their workforce from the virus particularly if the threat escalates. Employers should issue clear guidance to employees who have recently travelled to China or who have been in contact with someone who has. Employers should also consider putting in place a flu pandemic or infectious diseases contingency plan that addresses business continuity in the event that the situation worsens.
If an employee has symptoms associated with Covid-19, or has been in contact with an infected person, or someone who has recently travelled to China, can they be instructed not to come to work?
Employers are under a duty to ensure the health and safety of all their employees and to provide a safe place and system of work. These duties exist under both the common law and statute. Employees are also under a duty to take reasonable care to ensure that they do not endanger themselves or anyone who may be affected by their acts or omissions at work.
In light of the above duties, and the serious implications for its business if Covid-19 is contracted and spread in the workplace, an employer would be justified in instructing an employee with the symptoms associated with Covid-19 not to attend work, and to seek a diagnosis from a medical professional and not return to work until the symptoms have cleared.
In relation to an employee who does not have the symptoms associated with Covid-19, but who has recently travelled to China or another affected region or has been in contact with someone who has or with an infected person, the employer should check advice from the relevant public health body on whether or not it is necessary on risk grounds to ask such people not to attend work. However, it is open to the employer to agree with the employee that they will work from home or return to work only if they do not develop symptoms during the incubation period.
Is there any duty on employers to close their workplace during a flu pandemic or an infectious disease outbreak to prevent the spread of viruses such as Covid-19?
There is generally no requirement for employers to close their workplace during a flu pandemic or an infectious disease outbreak, but employers should check guidance from the Department of Health or the relevant public health body on a regular basis. Guidance for businesses from the Department of Health during previous threats such as the swine flu pandemic was that the primary focus of businesses should be on environmental, organisational and general hygiene measures to reduce the risk of transmission of flu.
Employers should consider putting in place a contingency plan that addresses business continuity in the event that the Corvid-19 threat escalates and results in workplace closures. In particular, alternatives such as homeworking, working from different premises, lay-off and enforced holiday should be explored. Employers should review the extent to which their technology enables remote access via broadband or satellite connections where this would enable employees to work from home.
Can an employer insist that an employee who has flu-like symptoms is tested for Covid-19?
Employers cannot insist that their employees are tested for flu. Testing an employee without their agreement would constitute a criminal assault and could also result in a claim for constructive unfair dismissal.
For an employer to require an employee to submit to a test for flu, it would need a contractual right to do so contained in either the contract of employment or a separate policy. Even where the employer has the contractual right to require such a test, the employee must be willing to be tested, although a failure to agree in these circumstances can be treated as a disciplinary issue. The level of any disciplinary sanction should be set out in the relevant policy and should be reasonable in the circumstances of the case.
If, during an infectious disease outbreak such as Corvid-19, an employer has a high proportion of employees absent, can it require other employees to work extra hours to cover the work?
An employer can require its employees to work extra hours where the contract of employment allows for this, and many employment contracts contain a term that states the employee is required to work additional hours in accordance with the needs and the requirements of the business. Any contractual right should be exercised fairly and reasonably so as not to breach the implied term of trust and confidence. The employer should consult with its workforce so as to determine which employees are able to work extra hours, and which have good reasons for not being able to do so. Where there is no relevant contract clause, employers must remain conscious of the difficulties of unilaterally imposing contractual changes, which may result in claims for constructive unfair dismissal. Any changes should be undertaken with early consultation and with a view to reaching agreement with employees. An employee may be taken to have agreed to contractual changes by working extra hours without complaint.
Employers should also ensure that they observe their obligations under the Working Time Regulations 1998 (SI 1998/1833). The Regulations apply to "workers", which is defined as anyone engaged under a contract to do any work personally, but excludes the genuinely self-employed. Under the Regulations, a worker is entitled to an 11-hour daily rest period (reg.10), a 24-hour weekly rest period (reg.11) and a rest break of 20 minutes where the employee works more than six hours (reg.12). The employer must also provide adequate rest breaks where the pattern of work is such as to put the worker's health and safety at risk, e.g. monotonous work (reg.8). There are exemptions that apply to regs. 10, 11 and 12. One that may apply in the case of a flu pandemic is where the worker's activities are affected by an occurrence due to unusual and unforeseeable circumstances beyond the control of the employer or an accident or the imminent risk of an accident. Finally, unless employees have signed voluntary opt-out agreements, employers should ensure that their adult workers do not work more than 48 hours a week calculated over a reference period of 17 consecutive weeks.
Do employers have a duty to take special measures to protect those employees who are most at risk if they are exposed to Covid-19?
Employers should check guidance from the Department of Health or the relevant public health body on any health conditions that could cause a vulnerability to becoming seriously ill with Covid-19. People at particular risk could include those with weakened immune systems, older workers, and those with long-term conditions like diabetes, cancer and chronic lung disease. Given the duty to ensure the health and safety of their employees, employers should consider measures to protect these employees from the risk of infection, for example by reassigning staff from high-risk work sites or locations.
Employers are also under special duties in relation to pregnant employees and disabled workers. In relation to pregnant employees, reg.16 of the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242) imposes a duty on employers to conduct a risk assessment if working conditions could involve risk to a new or expectant mother or their baby. If the assessment reveals any risk to an employee, or their baby, the employer must follow a series of steps to ensure that they are not exposed to the risk or damaged by it. If the risk cannot be avoided, the employee's working conditions or hours of work should be altered. Where that is not feasible, they should be removed to another job or, as a last resort, suspended on full pay. However, where there is suitable alternative work within the company, the employee must be offered the work before being suspended on maternity grounds. Previous guidance from the NHS advised that the risk of infection can be reduced if pregnant women avoid unnecessary travel and crowds, therefore employers should also try to limit these aspects of a pregnant employee's role.
In relation to other vulnerable employees, such as those who are asthmatic, they may be protected by the disability provisions of the Equality Act 2010 if their condition satisfies the definition of "disability" in s.6. Where the Act applies, employers are under a duty to make reasonable adjustments, which may entail taking special measures to protect disabled staff. Examples of reasonable adjustments include assigning the disabled person to a different place of work and allowing homeworking.
(Based on advice published by XpertHR)
Further advice is available from Acas. See https://www.acas.org.uk/coronavirus