Staffing challenges in the face of a global pandemic
by Laura Morrison
Laura Morrison is a senior practice development lawyer at Denton’s.
What responsibilities do we have towards our employees?
As an employer, you have a duty of care to your employees in relation to health and safety, and indeed towards other individuals, including workers/contractors and visitors to your premises. UK health and safety legislation requires all employers to assess and review risks and to maintain an emergency procedures policy, should there be an event that creates a “serious and imminent danger to persons at work.” Employers must communicate this policy to employees and provide appropriate training.
Employees also have a responsibility under the legislation to take reasonable care not to endanger themselves or anyone who may be affected by their actions at work.
If employees have to self-quarantine for 14 days, do we have to pay them? Are they entitled to statutory sick pay?
The government announced in the budget statement that statutory sick pay (SSP) should be paid to all those who choose to self-isolate, even if they do not have symptoms. It is also, for the time being, payable from day one of absence, rather than the usual day four. This will be relevant for those who cannot work from home during self-quarantine. Strictly speaking, evidence of sickness is required after seven days’ absence.
However, the government guidance strongly recommends that employers are lenient about this where a medical professional has instructed an individual to self-quarantine.
The definition of “employee” which applies in the relevant regulations relating to SSP is much wider than in some contexts, so workers will also qualify if their earnings are liable for Class 1 National Insurance contributions.
As part of the measures announced in the budget statement, the government will reimburse the cost of any SSP small employers (those with fewer than 250 employees) pay to eligible employees for the first 14 days of sickness.
Should we make special allowances for an employee who cares for an elderly relative or lives with someone whose immune system is compromised?
Concerns around COVID-19 will be greater amongst this class of individuals because they have caring responsibilities for dependants and because of the risks involved if they pass COVID-19 on to the dependants they are looking after.
While (at the time of writing) there is no obligation to make special allowances, you should seek to do so wherever possible. This could include allowing this class of employee to work from home or to take holiday or unpaid leave.
How should we deal with pregnant employees?
Employers have a duty to carry out a risk assessment of the workplace for pregnant employees. In most cases, pregnant employees should be sent home on full pay (medical suspension) under existing rules around the health and safety of pregnant employees.
Remember employees who are only a few weeks pregnant may not have told their employer. Employers need to consider encouraging employees to tell them so they can take appropriate action.
What do we do if someone displays symptoms while at work?
The government and ACAS have given detailed guidance on this. The first step is to keep the individual two metres away from everyone else and ensure that he/she does not touch anything. If they need clinical advice, they should go online to NHS 111 or call 111 if they do not have internet access.
Should we tell the rest of the workforce if an employee is diagnosed with COVID-19?
You would not be obliged to inform the rest of your staff that a colleague has been diagnosed with the virus, but it would be good practice to do so for reasons of transparency.
However, personal health information is special category data under GDPR, so you must take care to preserve the individual’s privacy as much as possible and not to name them directly. In reality, employees will likely be able to identify the individual, so you should remind employees that they must not speak to the media and, in particular, should not name anyone who may have the virus.
This article reflects the law on 19 March 2020.
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