The coronavirus outbreak raises a number of difficult legal issues for employers of staff who have travelled from or with plans to visit affected areas. Will Walsh from DMH Stallard’s employment law team addresses the most common questions.
Can we suspend employees who might have been exposed to the virus?
Normally an employee should only be suspended if you have the right to do so under the terms of the employment contract. However you have a duty to take all reasonable steps to ensure the health and safety of your employees; those issues will outweigh the risks of any potential breach of contract in the event of genuine concerns over coronavirus.
Government guidance on isolation is in place for travellers returning from affected areas. You should follow that guidance as a minimum and should insist that employees remain away from the workplace while any isolation period applies and/or any symptoms have disappeared. If you wish to take a more cautious approach and require employees returning from any affected area to remain away from work, you may do so as long as your grounds for concern are reasonable and non-discriminatory.
Depending on the employee’s job, it may of course be possible to make arrangements for them to work remotely rather than suspending them from work altogether.
What happens about pay?
An employee’s legal right to pay will depend on their exact circumstances.
If an employee is unable to attend work because they are suffering from symptoms, you should treat them as being off sick and pay sick pay in the normal way.
If an employee is not unwell, but in quarantine based on government guidelines and unable to work remotely, it is possible that they can still be deemed to be unfit to work and entitled to sick pay if they have a written notice issued by a GP or by 111 confirming that they must self-isolate. Without that notice, strictly speaking they are not available for work and therefore not entitled to be paid. An employee stuck abroad because flights to and from their destination have stopped would be in the same position of not being available for work and therefore not entitled to pay.
If you have chosen to suspend an employee from work as a matter of extra precaution, you should pay them as normal: they are fit and able to work, and it’s your choice to exclude them.
In all of these cases you may decide to continue full pay, particularly if you are concerned that an employee might not tell you about where they have been, or try to return from sickness too early, rather than lose pay. You may take a different view if an employee went on holiday to a destination in full knowledge of the risks, but you should be as consistent as possible with any discretion exercised. The situation would also be different if they had travelled on a work related matter, in that case full pay should continue during any absence.
Can we ban employees from travelling to affected areas on holiday?
You need to be careful about imposing a complete ban, as it could raise the risk of indirect discrimination claims from employees who, for example, could not visit relatives in their country of origin. Therefore whether or not a ban is appropriate depends on the actual level of risk.
If you have clear guidelines in place on what periods of suspension from work may apply and what the impact on pay would be, employees can make their own informed choice before they travel.
What if employees refuse to attend work for fear of infection?
An unreasonable refusal to attend work could become a disciplinary issue, but make sure that you understand their particular concerns and do what you can to find an alternative solution before taking any action.
If they are worried about catching the virus from colleagues, the steps you take to keep those at risk of carrying the virus away from the workplace should be enough to allay fears. However, the issue could be that they are worried about infection on public transport, or contact with other members of the public when doing their job. In that case, you should consider adjusting working hours to avoid peak travel times or remote working.
You need to show even more flexibility for pregnant employees or those at higher risk; if you are unable to guarantee a safe place of work for vulnerable employees and there is no alternative, you may be required to pay them in full while they remain away from work.
If you would like to discuss the issues raised in the above article further, or would like advice on putting together staff guidance on these matters, please contact Will Walsh
by phone or by email