Coronavirus: key issues for employers #2

18 Mar 2020

Acknowledging the fact that the situation is changing on a daily basis, the recurring questions we’re fielding from clients include:

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 is in place on isolation, together with measures that are under constant review. You should follow that guidance as an absolute minimum and should insist that employees remain away from the workplace while any isolation period applies. If you wish to take a more cautious approach and require employees to remain away from work, you may do so.

What happens about pay?

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 they are not unwell, but in quarantine based on government guidelines and unable to work remotely, they will be deemed to be off sick and should be paid sick pay accordingly. The entitlement will be the greater of contractual sick pay or any statutory sick pay.

If you have chosen to suspend an employee from work as a matter of extra precaution, you should pay them as normal. An employee is entitled to pay if they are fit and willing to work, and in this case it is your choice to exclude them.

If your workplace is forced to close following government direction, or because the premises has to be closed for cleaning in the event of a suspected case on site, again employees should be paid as normal on the basis that they are fit and willing to work. Where possible, you would look to put alternative or home working arrangements in place so that employees could continue working. It may also be that the government announces further proposals to deal with the issue of employee pay in these circumstances.

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.

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.  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 above or would like advice on putting together staff guidance on these matters, please contact Will Walsh by phone or by email, or any member of the Employment team.

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