|Coronavirus (COVID-19) FAQS|
Disclaimer: These FAQs are intended to provide information and guidance on the HR and employment law implications of the Covid-19 situation. They do not constitute legal advice and should not be relied upon as such.
Employees unable or unwilling to attend work
Last updated: 13/10/2020
1. What if an employee refuses to come to work or return to work because of concerns about coronavirus? Is this grounds for disciplinary action? (Last updated 13/10/2020)
At the start of the Covid-19 crisis, official guidance was that everyone should work from home where possible, although employees who could not work from home were permitted to leave home to attend work and the recommendation to work from home if possible remained in place as lockdown measures first began to ease. From 1 August, the Government indicated that ‘working safely’ may mean working from home, but it could alternatively mean working in the workplace if Covid-19 secure guidelines are followed closely – see our FAQs on ‘Health and safety measures’ for information on these guidelines. However, on 22 September, in view of a rise in the Covid-19 transmission rate, the Government announced a further change of approach, recommending that workers who can work from home should do so once again, although emphasising that in all professions where homeworking is not possible, people should continue to attend their workplaces.
In the circumstances, it is important to acknowledge that some employees may be unable to come into work – for example, those who have been ‘shielding’ and whose workplace cannot be made sufficiently Covid-secure for them to return to work now that the shielding guidance has been relaxed. (By way of reminder, shielders are the approximately 1.5 million clinically extremely vulnerable individuals who are most at risk of suffering severe and life-threatening symptoms if they contract Covid-19 and to whom the NHS wrote individually at the start of the pandemic to advise them to remain at home. Since 1 August, the guidance has been relaxed so that these individuals are no longer advised to shield. Accordingly, since 1 August, they have been able to return to the workplace if they cannot work from home, provided that their workplace is Covid-secure in accordance with available guidance – although they should continue to work from home if they can. It is also worth noting that such clinically extremely vulnerable individuals may be advised to resume shielding if their area is placed into very high alert under the Government’s three tier alert system and is considered by the Chief Medical Officer to be particularly badly affected).
Others may have particular concerns about coming into work – for example, if they:
- are not shielding but are otherwise considered vulnerable (i.e. those who are at higher risk of developing severe coronavirus and/or may have compromised immunity such as those aged 70 or over, those who have an underlying condition, or those who are pregnant – full list available here- see section 7) and are therefore advised to take particular care and keep their social interactions low; or
- live with someone who is shielding or otherwise vulnerable whom they wish to protect.
Even employees who do not fall into any kind of vulnerable group may not be able to get to work due to the unavailability of safe means of transport. And even if they are able to travel to work safely, employees may understandably be concerned about their safety in the workplace.
Where an employee has genuine concerns, the employer should listen to them and try to accommodate them where possible. (This is important since, as noted at question 2 below, employees are protected from detriment or dismissal where they leave or refuse to attend work in circumstances of danger which they reasonably believe to be serious and imminent.) Employers also have a duty to take reasonable steps to provide a safe working environment and, as described in our FAQs on Health and safety measures, there are detailed safety measures that employers should put in place to ensure this.
Note that employers also have an obligation to make reasonable adjustments under the Equality Act 2010 where someone has a disability. Employees who are shielding are extremely likely to qualify as disabled under the EqA and many employees who are not shielding but are otherwise considered vulnerable may do so as well. The duty to make reasonable adjustments for disabled employees is flagged in the Government guidance on working safely in factories, plants and warehouses, as is the requirement to take into account employees’ protected characteristics when making decisions, ensuring that any steps you take do not have an unjustifiable negative impact on (i.e. indirectly discriminate against) some groups compared with others.
In this environment, we generally advise that you exercise caution and seek specific advice if you are considering taking disciplinary action against members of staff who say that they are unable to attend work.
2. What about pay for employees who cannot work from home and who are unable/unwilling to attend work or return to work due to concerns about coronavirus? (Last updated 13/10/2020)The basic starting point would be that an employee who is not ready, willing and able to work would not be entitled to be paid. However, in the context of the coronavirus pandemic, there are various factors to consider:
- For employees who have been unable to attend work because they have been shielding, the recommendation is that they remain cautious and continue to work from home wherever possible, notwithstanding the relaxation of the shielding guidance from 1 August. Where working from home is not possible and the employee considers that the workplace cannot be made sufficiently Covid-secure for them to return (see our FAQs on ‘Health and safety measures’), employers may well want to continue to provide financial support as a matter of good practice. One way that employers may have been able to do this was to furlough these employees under the Coronavirus Job Retention Scheme (the Scheme), as the Government guidance on furlough expressly stated that such leave was available for those who were shielding. The Scheme closed to new entrants on 10 June, so if an employer had not furloughed a shielding employee before that date, they would be unable to do so now. However, we assume from the wording of the current guidance on furlough that shielding employees who had already been furloughed and who cannot return to work can remain on furlough notwithstanding the relaxation of the shielding guidance from 1 August. In addition, if a shielder who has returned to work is required to shield again in the event that their area is placed into the very high alert category under the Government’s three tiered alert system and is considered by the Chief Medical Officer to be particularly badly affected, the employer will be able to place them on furlough again, provided they have previously been furloughed for a period of at least 3 consecutive weeks taking place any time between 1 March and 30 June 2020. The Scheme is due to end on 31 October and the financial support it provides began gradually tapering down from the end of July – see our FAQs on ‘Furlough under the Revised Coronavirus Job Retention Scheme’ for details. (An alternative where furlough was not available could have been to pay shielding employees sick pay, since they were entitled to receive SSP while they were shielding. However, shielders’ entitlement to SSP came to an end following the relaxation of the shielding guidance from 1 August. The regulations that provide for this also include the possibility that such individuals may become entitled to SSP again if they are once again notified that they are required to shield). Note, if an employee who cannot work from home and has been away from the workplace because they were shielding (whether on furlough, SSP, or some other arrangement) says that they want to return to work, but you do not think you can make the workplace sufficiently Covid-secure for them taking into account their particular circumstances and the applicable Government guidance, we recommend that you seek advice on the most appropriate course of action.
- Other employees are not entitled to SSP unless they are self-isolating because they or someone in their household/support bubble has symptoms of Covid-19, they have been instructed to self-isolate under the NHS test and trace programme (see questions 5 and 6 below), or they have been advised by a doctor or clinician to self-isolate before being admitted to hospital for surgery. If an employer wishes to continue to provide financial support to employees who are not entitled to SSP (which they may do, for example, if the employee has particular concerns about attending work because they are vulnerable, or live with someone who was shielding or is vulnerable), the employer could nonetheless treat them as if they were sick and pay them an amount equivalent to SSP (or company sick pay, if applicable). If eligible, the employer could have considered furloughing the employee, prior to 10 June. The Scheme closed to new entrants after that date so if an employer had not furloughed an employee by then, they would be unable to do so now. However, employees who had already been furloughed can remain on furlough while the Scheme is in operation. It is due to end on 31 October and the financial support it provides began gradually tapering down from the end of July – see the FAQs on ‘Furlough under the Revised Coronavirus Job Retention Scheme’ for more information. If furlough is not available/appropriate, the employee could be allowed to take a period of unpaid leave, or paid annual leave, if this is realistic taking into account the employee’s role and the operational needs of the business.
- The approach an employer choses to take in this situation will depend on the facts of each individual case. Employers should be mindful of the possible impact of s.44 and s.100 of the Employment Rights Act (which protect employees from detriment or dismissal where they leave or refuse to attend work in circumstances of danger which they reasonably believe to be serious and imminent). It is also possible that an employee who refuses to attend work raising safety concerns relating to coronavirus might qualify for protection from detriment and dismissal as a whistleblower. Accordingly, if you are considering withholding any pay from an employee who is unwilling to attend work due to safety concerns about coronavirus, we suggest you seek advice on your particular situation.
(See also question 3 below, for particular considerations applicable to pregnant employees.)
3. What is the position for pregnant employees – should they still attend work? (Last updated 22/09/2020)
- assess workplace risks;
- alter the employee’s working conditions or hours of work to avoid any significant risk;
- where such alteration is not reasonable, or would not remove the risk, offer suitable alternative work on terms that are not substantially less favourable; and
- where suitable alternative work is not available, or the employee reasonably refuses it, to medically suspend the employee on full pay.
With this in mind, as the Covid-19 situation continues to evolve, it would be advisable for employers to carry out a risk assessment for all pregnant women, to identify the risks and consider what measures can be put in place to protect them.
4. How should employers accommodate employees who cannot come to work due to childcare issues? (Last updated 22/09/2020)
All schools closed to pupils on Friday 20 March, save for the children of key workers such as NHS staff, school staff and delivery drivers. This decision inevitably had a significant impact on the workforce.
Although schools have now reopened, many are operating staggered start and finish times that could impact on working parents and wraparound care provision (such as breakfast clubs and after school clubs) may not be available.
In addition, the Government guidance for schools indicates that:
- Any child who develops Covid-19 symptoms must be sent home from school to self-isolate for 10 days and, as a member of the same household, their parent will also need to self-isolate for 14 days. Household self-isolation can be ended early if the person with symptoms tests negative for Covid-19, although if the child is still feeling unwell (they may have a cold or flu, for example) they would need to remain away from school until they have recovered – and their parent may need to remain at home to look after them during this time.
- If a child tests positive for Covid-19, the school must contact the local health protection team, who will carry out a risk assessment to confirm who has been in close contact with the child during the period that they were infectious and ensure they self-isolate. This means that schools must send home those people who have been in close contact with the child who has tested positive, advising them to self-isolate for 14 days since they were last in close contact with that person when they were infectious. Close contact is defined quite broadly and includes: face to face contact for any length of time, within 1 metre, including being coughed on, a face to face conversation, or unprotected physical contact (skin-to-skin); contact within 1 to 2 metres of an infected individual for more than 15 minutes; and travelling in a small vehicle, like a car, with an infected person. The ‘bubbles’ that the school will have put in place to minimise contact between children and staff – which may be the child’s class, or year group – will assist in identifying those who have had close contact with the infected child, but not everyone in the bubble would automatically be sent home to self-isolate.
- If a school has two or more confirmed cases of Covid-19 within 14 days, or an overall rise in sickness absence where Covid-19 is suspected, it may have an outbreak and must continue to work with the local health protection team, who will be able to advise if additional action is required. In some cases, the health protection team may recommend that a larger number of other pupils (i.e. not just those who have had ‘close contact’ with the infected person as defined above) self-isolate at home as a precautionary measure. The guidance does not seem to limit this larger group to those in the ‘bubble’ with the child as it refers the possibility of sending the ‘whole site or year group’ home – although it does say that whole school closure will not generally be necessary.
- If a child is sent home to self-isolate for 14 days as a contact of someone who has tested positive for Covid-19, other members of their household do not need to self-isolate unless the child subsequently develops symptoms him/herself. (However, our expectation is that employers will receive requests from parents to remain at home with the child if the child is not old enough to be left at home without supervision.)
- If a child who is sent home to self-isolate for 14 days as a contact of someone who has tested positive for Covid-19 does subsequently develop symptoms, members of their household will need to self-isolate as well. If the child gets tested and the test result is negative, as a contact of someone who had tested positive the child will still need to complete the 14 day self-isolation period because they could still develop Covid-19 within the remaining days.
The above examples show that it is highly likely employers will experience an increase in the number of working parents who find themselves unable to come into work over the coming months. This may be particularly acute as we enter the autumn/winter flu season, as a high temperature and a cough are also common symptoms of ordinary flu, so many children who do not actually have Covid-19 are likely to be sent home from school to self-isolate. In addition, schools or local health protection teams taking a cautious approach where there are confirmed cases of Covid-19 within a school may react by sending home larger groups of children. If an employer employs many parents whose children attend the same school, it could find itself faced with a sudden and significant shortage of available staff.
In view of all of this, employers may now need to give further consideration to: whether home working would be suitable where employees have young children in the house (bearing in mind the Government announcement on 22 September that workers who can work from home should once again do so – on which, see question 1, above); what flexibility they can offer on hours in order for employees to work around their children’s demands on their time; what proportion of their workforce may need to take time out; and how they should respond when employees who cannot work from home find themselves unable to come to work at short notice.
Sick leave and pay
If an employee’s child cannot go to school because they have symptoms of Covid-19, the employee will be required to self-isolate him/herself – and will therefore be entitled to SSP and potentially also company sick pay (see questions 5, 7 and 8 below).
However, as explained above, if an employee’s child is sent home from school because they are a ‘contact’ of, or part of the same school ‘bubble’ as, someone who has tested positive for Covid-19, the other members of their household would not need to self-isolate. In those circumstances, a parent who has to stay at home to look after their child would not be entitled to SSP.
Emergency time off for dependents
Employees have a statutory right to a reasonable amount of unpaid time off to deal with an emergency involving a dependent. “Dependent” includes a spouse, partner, child or parent, or a person who lives with the employee (but not a lodger). Employees wishing to take emergency leave should inform their employer as soon as reasonably practicable of the reason for their absence and how long they expect to be away from work.
An employee whose children are sent home from school to self-isolate (in circumstances where the employee is not required to self-isolate him/herself) might seek to take emergency leave to care for their children. The right to take emergency leave is a right to a ‘reasonable’ amount of time off. It is intended not as a long-term solution, but rather to allow an employee to deal with an immediate problem and put other care arrangements in place. Ordinarily, it is considered reasonable for an employee to take one or two days off to try to arrange alternative childcare. However, finding alternative childcare in the current circumstances could be problematic. Indeed, if an employee is unable to attend work because their child has been sent home from school to self-isolate, it is unlikely to be appropriate for the employee to ask anyone from outside their household to care for their child – even if the employee does not have to self-isolate him/herself. Employers might therefore be willing to take the view that a 14 day period of unpaid emergency time off for dependents is ‘reasonable’ in the circumstances of the pandemic.
Note that if you subject an employee to detrimental treatment for taking emergency time off, or dismiss them or subsequently select them for redundancy because they took, or sought to take, emergency leave then they will be entitled to make a claim of detrimental treatment or unfair dismissal to an employment tribunal regardless of their length of service.
One possible option if the parent cannot work from home could be a period of unpaid statutory parental leave, as employees are entitled to take up to four weeks’ of such leave per child, per year.
Alternatively, employees could take paid annual leave – although as we approach the end of the year, some employees may find that they do not have enough accrued annual leave left to cover a 14 day self-isolation period.
For eligible employees (i.e. those who have previously been furloughed for at least a 3 week period between 1 March and 30 June 2020), furlough remains a possible option – but only until 31 October, when the Coronavirus Job Retention Scheme is due to end. See the FAQs on ‘Furlough under the Revised Coronavirus Job Retention Scheme’ for more information.
Dealing with longer term childcare issues
Longer term arrangements may be necessary, e.g. to account for the staggered start and finish times that many schools are operating, or for the unavailability of breakfast and after school clubs. Such arrangements will require both employers and employees to be flexible. It might be that agreement can be reached for employees to work flexibly (whether from home or at the workplace) if breakfast and after school clubs are unavailable, with staggered start and finish times or reduced hours to enable employees to drop off and collect their children from alternative care providers. Employers may need to make broader changes to shift patterns to facilitate this. If doing so, they should consider how such changes will fit with any applicable safety measures they put in place to minimise contact between different groups of staff (see the FAQs on ‘Health and safety measures’). They will also need have to be mindful of the need to consult with employees and seek their agreement to any contractual changes, as well as the risks of imposing contractual changes without agreement. Make UK members can access guidance on changing terms and conditions in the resources section of our website.
If changes to employees’ working arrangements to fit around their longer term childcare needs really cannot be accommodated, employers will need to seek advice as to the best way forward.
5. If employees self-isolate, are they entitled to statutory sick pay? (Last updated 07/10/2020)
If an employee chooses to self-isolate where neither they nor anyone in their household/support bubble has symptoms of Covid-19, they will not be legally entitled to any sick pay, unless they have been advised to self-isolate under the NHS test and trace programme – see question 6, below – or they have been advised by a doctor or clinician to self-isolate before being admitted to hospital for surgery. Note that the Government guidance on SSP confirms that employees who are required to self-isolate when returning to the UK from abroad under quarantine provisions are not entitled to SSP if they do not need to self-isolate for any other reason. See our FAQs on ‘Managing employees during the pandemic’ for details of the quarantine requirements. See also question 2, above, for a broader discussion of pay for employees who are unable or unwilling to come to work for a coronavirus-related reason.
6. What if an employee has to self-isolate under the NHS test and trace programme? (Last updated 07/10/2020)
Employees who self-isolate because they have been advised to do so under the NHS test and trace programme will be entitled to receive SSP (and, if relevant, company sick pay), as regulations deem them to be incapable of work for SSP purposes. SSP for such coronavirus-related absence is payable from the first day of absence.
However, Government guidance for employers notes that employers should allow such employees to work from home if they remain well and if it is practicable to do so. The guidance indicates that this might include finding alternative work that can be completed at home during the period of self-isolation. Employees who work from home should continue to receive their normal pay. For self-isolating employees who cannot work from home, the guidance makes clear that employers must ensure they are receiving sick pay. It also recommends that employers give such employees the option to use their paid leave days to cover the period of self-isolation if they prefer.
The guidance acknowledges that the requirement for employees to self-isolate under the test and trace programme may be disruptive, but emphasises the importance of employers supporting this. It notes that the programme is intended to support business and economic recovery and says that employers should encourage employees to heed any notifications to self-isolate and provide support to these individuals when in isolation, as well as continuing to follow the guidance on working safely during coronavirus to ensure safety in their workplace (on which, see our FAQs on Health and safety measures).
7. What if an employee who has already self-isolated once now needs to do so again? (Last updated 07/10/2020)It is entirely possible that some employees who have already had a period of self-isolation because they or someone in their household had symptoms of Covid-19 and have since returned to work may need to self-isolate again, e.g. because they develop symptoms, or because another person in their household/support bubble does. We think this is likely to be an increasingly common issue, particularly given that individuals must self-isolate with symptoms that may turn out not to be the virus, e.g. seasonal colds/flu. Employees may also be instructed to self-isolate under the NHS test and trace programme (see question 6, above) if they have been in close contact with someone who has tested positive for the virus – and, given the breadth of the definition of close contact, it is entirely possible that this could happen multiple times. Indeed, the guidance on self-isolation flags that an individual who develops Covid-19 symptoms at any time after ending a previous period of self-isolation must self-isolate again – as must those in their household, and the guidance for people who are contacted under the test and trace programme also acknowledges the possibility of multiple periods of self-isolation, e.g. where someone who completed 14 days’ self-isolation under test and trace develops Covid-19 symptoms him/herself at a later date and needs to self-isolate as a result.
It is also worth noting that, from 8 June, individuals entering the UK from overseas, including British nationals and residents, are required to self-isolate for a 14 day quarantine period unless certain exceptions apply. The Government guidance on SSP confirms that employees who are required to self-isolate when returning to the UK from abroad under quarantine provisions are not entitled to SSP if they do not need to self-isolate for any other reason. See the FAQs on Managing employees during the pandemic for further details of the quarantine requirements.
Finally, it is worth flagging that from 28 September, it is a legal requirement for individuals who have tested positive for Covid-19, or who have been instructed to do so under the NHS Test and Trace programme, to self-isolate. Individuals who do not comply can be fined and there are also potential penalties for employers who prevent individuals from self-isolating when required to do so – see question 7(a), below, for details. The self-isolation rules will be enforced more strictly going forwards, with NHS Test and Trace call handlers making regular contact with those self-isolating, with the ability to escalate any suspicion of non-compliance to local authorities and local police.
7(a). What if an employee does not want to self-isolate when required, or if we need an employee to come to work when they are meant to be self-isolating? (Last updated 07/10/2020)
From 28 September, it is a legal requirement for individuals who have tested positive for Covid-19, or who have been instructed to self-isolate under the NHS Test and Trace programme, to self-isolate and they can be fined if they do not do so. In addition, the relevant regulations require individuals who are required to self-isolate and due to work during the self-isolation period to inform their employer of the self-isolation requirement as soon as reasonably practicable and in any event before the individual is next due to work. (With regard to agency workers, they must notify either the agency or the hirer of the fact that they are required to self-isolate, and the person whom they notify must pass this information to the other parties involved.)
It is an offence punishable by a fine for an employer who is aware of an individual’s requirement to self-isolate knowingly to allow the individual to attend any place other than the place where the individual is self-isolating for any purpose relating to their employment. Company directors can be personally liable if the offence is committed with their consent or connivance or is attributable to their negligence.
Fines start at £1,000 but could increase up to £10,000 for repeat offences and for the most egregious breaches. Note that, when the Government announced these changes, it indicated that preventing others from self-isolating would be seen as an egregious breach, giving the example of a business owner who threatens self-isolating staff with redundancy if they do not come to work.
In view of these regulations, an employer should not allow any employee whom it knows is required to self-isolate to attend work for any reason during the self-isolation period. Self-isolating employees who are well enough and are able to do so should be enabled to work from home wherever possible. (For information on employees’ entitlement to pay while self-isolating, see questions 5, 6 and 7 above, and 8 and 9, below.)
Note that the requirement for individuals to notify their employer of the fact that they have to self-isolate and the prohibition on employers knowingly allowing such individuals to attend the workplace also apply in respect of employees who are required to self-isolate for a 14 day quarantine period on return from overseas travel. (See our FAQs on ‘Managing employees during the pandemic’ for further details on quarantine requirements.)
8. Must employers pay company sick pay to employees who are self-isolating? (Last updated 07/07/2020)
Many employers operate company sick pay schemes that provide full pay for a specified period of sickness absence. From a wellbeing and employee relations perspective, employers would want to continue to provide company sick pay throughout the Covid-19 pandemic.
However, employers are understandably concerned about the cost of maintaining their company sick pay schemes in view of the sheer number of employees who are likely to have to take time off sick as a result of Covid-19, whether because they have symptoms, because they are required to self-isolate where someone in their household/support bubble has symptoms, or because they have been advised to self-isolate under the NHS test and trace programme.
Some employers are therefore considering suspending the operation of company sick pay for the duration of the Covid-19 crisis in order to save costs. However, as a contractual change, this would require employee agreement – and unless a company is facing serious and immediate financial problems, it is likely to be difficult to persuade employees to give up such a valuable benefit at this time. That said, in these unprecedented circumstances, some employers might decide to take the risk of imposing the change unilaterally and face the consequences, such as breach of contract claims, at a later date.
Alternatively, employers might wish to take the view that company sick pay is not payable in cases of self-isolation where an employee is not actually ill, on the basis that any company sick pay policy was not designed to – and does not – cover such circumstances. However, there may be practical difficulties with this, e.g. in relation to the medical evidence you can realistically demand in the current circumstances. In addition, such an approach may create employee relations issues and involve questions of contractual change.
If you are considering making changes to company sick pay (whether that involves complete suspension or differentiating self-isolation from actual sickness), we suggest that you seek legal advice on your specific circumstances to understand the risks involved.
9. Are employees who have to self-isolate entitled to any other payments? (Last updated 13/10/2020)
The Government has introduced a Test and Trace Support Payment scheme for individuals on low incomes who are required to self-isolate. This will be a one-off payment of £500, payable by the local authority. Individuals will be eligible if they:
- live in England;
- have been asked to self-isolate by NHS Test and Trace, either because they have tested positive for Covid-19 or because they have recently been in close contact with someone who has tested positive;
- are employed or self-employed;
- cannot work from home and will lose income as a result of self-isolating; and
- are currently receiving at least one of the following benefits: Universal Credit, Working Tax Credits, income-related Employment and Support Allowance, income-based Jobseeker’s Allowance, Income Support, Pension Credit or Housing Benefit.
If an individual does not fulfil the above criteria for the Test and Trace Support Payment, they may be eligible for a £500 discretionary payment if they:
- live in England;
- have been asked to self-isolate by NHS Test and Trace, either because they have tested positive for Covid-19 or because they have recently been in close contact with someone who has tested positive;
- are employed or self-employed;
- cannot work from home and will lose income as a result of self-isolating;
- are not currently receiving any of the following benefits: Universal Credit, Working Tax Credits, income-related Employment and Support Allowance, income-based Jobseeker’s Allowance, Income Support, Pension Credit or Housing Benefit; and
- are on a low income and will face financial hardship as a result of not being able to work while self-isolating.
Individuals who are eligible for either a Test and Trace Support Payment or a discretionary payment will receive the £500 on top of any benefits and SSP that they currently receive.
Individuals wishing to apply for the Test and Trace Support Payment or a discretionary payment should contact their local authority.
(Note that the Test and Trace Support Payment scheme replaces the trial payment scheme that was announced at the end of August for individuals on low incomes in Blackburn with Darwen, Pendle and Oldham.)