Coronavirus Q&A for EmployersNeil Hardie
Here are just a few of the questions being answered, to read the full article please visit their website.
In what circumstances is SSP payable?
In order to qualify for Statutory Sick Pay (SSP) an employee must be absent from work due to incapacity. If an employee, following the guidance set out above, is experiencing any symptoms of the virus, and either decides to, or is advised to self-isolate, then it is likely that their absence will be regarded as an incapacity and they will be eligible for SSP.
Regulation 2 of the Statutory Sick Pay (General) Regulations 1982 (SSP Regulations) provides for certain types of absence to be deemed days of incapacity. Regulation 2 has been amended by the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020, so that with effect from 13 March 2020 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 disease, in accordance with guidance published by Public Health England, NHS National Services Scotland or Public Health Wales and effective on 12th March 2020.”
Is an employer entitled to send an employee home from work to self-isolate?
If the workplace and the nature of the role allow for remote working then this may provide the employer with an alternative to instructing the employee to self-isolate.
If there is an identified risk that an employee may have been exposed to COVID-19, then it is understandable, in light of an employer’s duty to protect the health and safety of other employees, that the employer would wish to keep that employee away from the workplace until the risk has passed.
Ultimately, the employer may regard the risk of allowing the employee to remain at work as outweighing any employment law risk which could exist in forcing them to work from home.
From an employment law perspective, the employer should consider whether it has an express right to require the employee to stay at home. If not, the question is then whether there is an express or implied right for the employee to attend work in these circumstances. It would be unusual for the employer to have provided the employee with an express right to attend work regardless of circumstances, and there is no general implied term requiring an employer to provide work provided it continues to pay the employee’s wages
It is therefore unlikely to be a breach of implied duties to require an employee to stay at home in these circumstances, assuming there are reasonable and non-discriminatory grounds for concern, and the matter is dealt with proportionately and sensitively. The employee would, however, remain entitled to full pay.
What should an employer do if an employee starts displaying symptoms at work?
The Government guidance advises that if the employee has not been to one of the high-risk specified areas in the last 14 days, then work can continue as normal. However, if the employee has travelled to one of the affected countries in the last 14 days, they should be removed to an area which is at least two metres away from other people. If possible, this should be a room or area where they can be isolated behind a closed door, such as a staff office. A window should be opened, if possible, for ventilation.
The guidance advises that the affected employee should call NHS 111 from their mobile, or, alternatively, 999 should be called if it is an emergency (if the employee is seriously ill or injured or their life is at risk) and explain which country they have returned from in the last 14 days and outline their current symptoms.
While the employee waits for advice from NHS 111 or an ambulance to arrive, they should remain at least two metres away from other people. They should avoid touching people, surfaces and objects and be advised to cover their mouth and nose with a disposable tissue when they cough or sneeze and put the tissue in a bag or pocket then throw the tissue in the bin. If they do not have any tissues available, they should cough and sneeze into the crook of their elbow.
If the employee needs to go to the bathroom while waiting for medical assistance, they should use a separate bathroom if available.
Both the Government guidance and the Acas guidance are updated frequently and employers would be advised to check the online versions for the latest advice.