Coronavirus (Covid-19): Is your business prepared?
In this article, we:
- identify key matters that you should consider when putting together, or updating, a contingency plan to apply in the event of a coronavirus outbreak in your organisation; and
- address some of the potential employment law issues that might arise as a result of managing an outbreak of coronavirus in your organisation, or where your production is disrupted due to the impact of coronavirus on your suppliers.
Preparing a contingency plan
Involve key stakeholders at the planning stage
It is a good idea to get all key stakeholders in the business to contribute to the planning process. This would include representatives from Occupational Health, Health and Safety, Human Resources and senior management.
You should also consider involving staff representatives at this initial planning stage. Union and staff representatives’ involvement may well become a necessity in any event if, as part of your contingency planning, you decide to change current policies and procedures.
Early involvement of the workforce also makes for easier communication of any subsequent changes.
Key matters to consider/review
Whether or not you have a business recovery plan which you can utilise to kick-start your planning process, some of the key issues to consider include:
- Identifying business critical roles
- Establishing current levels of transferable skills within your workforce
- Will you be able to redeploy existing staff to cover gaps in critical areas? Are your existing contracts of employment sufficiently flexible to accommodate such redeployment?
- What training and knowledge-sharing needs to be undertaken now to ensure that staff are ready to cover critical roles should there be an outbreak? Would it be helpful to put a ‘buddy’ system in place – pairing up specific workers/groups of workers to maximise your potential cover for critical roles?
- Are you in a position to encourage and facilitate a high level of remote working, thereby reducing risks of contamination and helping to ensure continuation of operations/services?
- Will you need to use temporary cover/agency workers? What processes do you have in place to ensure you can secure such resources as swiftly and cost effectively as possible?
- Do you have up-to-date employee information, including emergency contact details? Make sure that relevant individuals know where this information is kept and that you are clear about who has authority to access it.
- How will you communicate with staff during an outbreak? Do you have an established and effective communication cascade process?
- What health and safety measures do you have/will you implement in the workplace? For example, could you provide tissues and hand-sanitiser and encourage their regular use, by displaying posters or circulating staff communications encouraging staff to wash their hands or use hand-sanitiser on arriving in the building after using public transport and after coughing or sneezing? Should you increase the frequency with which frequently touched communal areas, including door handles, kitchens, toilets, showers, and hot-desk keyboards, phones and desks, are cleaned?
- Think about your external customers. What would be the potential impact on your delivery of products or services if you had to operate on a skeleton staff due to large-scale sickness absence? Do you want to include your customers in any communication cascade?
- What procedures do your suppliers have in place to minimise disruption/impact on your own business?
- Ensure there is ongoing review of official/government websites at management level in order to keep up-to-date with developments in your area and any changes in government advice.
Think about your existing policies and procedures
Which policies will be most important in an outbreak situation? Would your current polices be adequate?
You may decide that you need to adapt some of your current policies and procedures, or introduce new procedures, to deal with a potential outbreak. For example, if you don’t currently operate remote working but believe that it could assist in maintaining critical roles during an outbreak, you should consider providing guidance to employees as to how you want remote/home working to operate.
Consider the status of your current policies. Although most employment policies are not contractual and reserve the right for employers to make amendments from time to time, some policies and procedures may have contractual status. Amending existing policies and procedures which have contractual status is likely to require collective consultation with unions or employee representatives.
Even if policies are not contractual, you should still consult with the workforce and give sufficient notice before implementing any changes.
You should pay particular attention to the following policies:
Sickness absence policy
Is your policy clear about how to report sickness absences, whom employees should contact in the case of illness, within what timescale they should do so and how often sick employees should keep in touch?
Does your policy require employees to produce a doctor’s certificate following a certain number of days, or on return to work?
In light of government advice that individuals who display symptoms of coronavirus should not attend their GP surgeries, but instead call 111, you should consider temporarily amending your sickness absence policy to extend the length of time for employees to provide a doctor’s certificate, e.g. allowing them to provide it upon their return to work.
We recognise there is some risk of abuse by some employees in operating a more relaxed system for production of doctor’s certificates, but you can still insist on compliance with individual reporting requirements and operate return to work interviews in an attempt to manage absences.
Remote/home working policy
To assist with containment, do you want to encourage more employees to work from home where possible? If so, you should ensure you have provided sufficiently detailed instructions to regulate an increased operation of remote/home working. Who should employees report to when working remotely? How often?
Consider whether you also need to enhance your IT and Data Protection polices to ensure adequate security and compliance if there is a substantial increase in remote/home working.
Could your company’s IT infrastructure cope with a significant increase in people working remotely?
Consider what information you should be providing to employees who travel abroad on business. The government keeps its website updated as to the coronavirus situation on a country by country basis: https://www.gov.uk/guidance/wuhan-novel-coronavirus-information-for-the-public.
You might want to consider encouraging employees to minimise all business travel, including within the UK, and encourage alternatives such as increased use of video or teleconferencing.
You may see an increase in employees taking other forms of leave, either to take care of sick family members, or if they are experiencing knock on problems in childcare provision.
How will you deal with such requests in light of overall staff shortages?
Being seen to operate such policies flexibly and fairly is important. However, you may want to warn employees that, if sickness absence is exceptionally high, the company may have to temporarily refuse additional requests for annual leave.
Agree your communication plan
Once you have decided how a significant outbreak of coronavirus may affect your business, you should consider how much information you need to give to your staff and how best to communicate this.
For internal communication, use your normal communication cascade – whether via team briefings/intranet and e-mail updates/employee newsletters. Remember to include those employees who are currently off sick, on maternity leave or other family leave, or who work remotely/from home on an ongoing basis.
The level of information you need to provide to staff will depend on the nature of your business, the health and safety advice you have received and communicated to-date and your assessment of how serious the potential impact of an outbreak on your particular business will be.
However, you should be careful not to alarm staff unduly.
Key basic information that employees will need includes:
- Confirmation of health and safety measures in force
- Symptoms to look out for
- Who to contact within the company if they feel unwell
- What to do if they are displaying symptoms or have had contact with someone who is confirmed to be suffering from coronavirus
Ensure that employees have ready access to relevant policies and make employees aware if these policies have been amended, or are subsequently updated as the situation develops.
Coronavirus scenarios: Q&As
1. We need to send an employee to China/another country with a high incidence of coronavirus. Are we entitled to do so? What should we do if the employee refuses?
The Foreign Office advice at the time of writing is to avoid all travel to Hubei Province and all but essential travel to the rest of mainland China. It is not advising against travel to any other country/territory as a result of coronavirus risks but this advice is being kept under review.
In our view, it would constitute an unreasonable instruction to require an employee to travel to China, given the strong advice not to travel. Accordingly, an employee would be entitled to refuse to accept the instruction and it would not be appropriate to discipline the employee in consequence of the refusal. Should an employee accept an instruction to travel and subsequently contract coronavirus, there is a clear risk of liability for negligence on the part of the employer, unless - at the least - it has carried out a risk assessment (see below) and ensured the employee is aware of the risks and the symptoms of coronavirus. The employer must also ensure the employee has adequate health insurance cover.
In relation to travel to other areas, such as Thailand, Singapore, Japan and Hong Kong, where cases of coronavirus have been reported, government advice to travellers at the time of writing is simply to be aware that cases of coronavirus are on the increase and to be aware of its symptoms. In our view, non-essential travel to these areas should be avoided. From a legal perspective, employers who nonetheless wish to send employees to potentially affected areas should be aware of their duty of trust and confidence and their duty to take reasonable care for the health and safety of employees. Breach of the trust and confidence term would enable the employee to resign and claim unfair constructive dismissal. In relation to the health and safety term, and under the Management of Health and Safety at Work Regulations, employers are obliged to carry out a risk assessment. This would need to take into account the prevalence of coronavirus in the intended destination, the age and general fitness of the employee concerned, the likelihood of close contact with infected people, etc.
Even in the event that government advice to restrict travel to affected areas is relaxed, we would still take the view that employers should be conscious of the duty of trust and confidence and the duty to take reasonable care for the health and safety of employees, and ensure that they undertake a careful risk assessment before sending employees to such areas.
Advice on travel to and from affected areas is available on the government website and is regularly updated: https://www.gov.uk/guidance/travel-advice-novel-coronavirus.
2. Can we insist that employees returning from areas where there has been a high incidence of coronavirus remain away from work?
Government advice at the time of writing is that people returning from Wuhan or Hubei Province should isolate themselves and contact NHS 111.
For individuals returning from the rest of China, and other countries where there has been an outbreak of coronavirus, advice at the time of writing is that there is no need for individuals to isolate themselves unless they are displaying symptoms.
This advice may change as the situation develops. The government keeps its website updated as to the coronavirus situation on a country by country basis: https://www.gov.uk/guidance/wuhan-novel-coronavirus-information-for-the-public.
In the event that an employer does require an employee to remain at home following a visit to an area where there has been a high incidence of coronavirus, it would, of course, remain obliged to pay the employee’s normal pay so long as the employee remains ready, willing and able to work.
3. Is it safe to handle goods received from China/other affected areas?
It is safe to handle goods received from China/other affected areas. People receiving packages from China/other affected areas are not at risk of contracting the coronavirus.
World Health Organisation advice confirms that, from previous analysis, it is known that these viruses do not survive long on objects, such as letters or packages.
4. One of our employees has phoned in and told us he can’t come to work because he thinks he has coronavirus, as he has flu-like symptoms and has recently returned from an affected country/may have had contact with someone with coronavirus. We have had no other outbreaks and believe we have taken appropriate health and safety measures. This employee has previously had a very high level of intermittent absences and we are concerned that he is trying to take advantage of the current situation. What can we do?
The employee should be reminded that he is subject to the company’s current sickness absence policy (which should be readily available to employees) and that he will be expected to comply with its ongoing reporting requirements.
Ask an employee who is reporting themselves as suffering from coronavirus/displaying symptoms whether they have been diagnosed or tested. This information will give you an indication as to when you might expect the employee back at work. If the employee has not been diagnosed or tested, tell them to call NHS 111 to seek advice/ask to be tested and report back to HR regarding the advice given.
On the basis of medical advice at the time of writing, if the employee:
- has travelled to Hubei Province within the past 14 days; or
- is displaying symptoms and has travelled to the rest of mainland China/another affected area within the past 14 days; or
- is displaying symptoms and within the past 14 days has been in contact with someone who is confirmed to have coronavirus,
then there's a chance the employee could have coronavirus, and they may be asked to isolate themselves, possibly for 14 days.
If you have amended your sickness policy, there may be a fall-back position in relation to the requirement for an employee to produce a doctor’s certificate in respect of ongoing absence. In addition, return to work interviews can be an effective deterrent against abuse of sickness absence.
If an employee fails to comply with the company’s sickness absence reporting procedures, then their absence will be unauthorised and they may be subject to disciplinary proceedings under the company’s disciplinary policy. However, in an outbreak situation, employers should be cautious in the use of disciplinary sanctions when dealing with sickness absence issues.
5. One of our employees has informed us that her child’s school has been closed due to an outbreak of coronavirus. Although she and her child are fine, she says that she can’t come into work as she has no childcare. Do we have to agree to her taking time off? If so, do we have to pay her?
All employees have a statutory right to a reasonable amount of unpaid time off to deal with an emergency involving a dependant. A dependant includes a spouse, partner, child, or parent, or a person who lives with the employee (but not a lodger).
The employee in question could seek to exercise her statutory right to take emergency leave to deal with her unexpected childcare problem.
The right to take emergency leave is a right to a ‘reasonable’ amount of time off. The amount of time is not fixed. It is intended to allow an employee to deal with an immediate problem and put other care arrangements in place.
So, in this instance, if the employee doesn’t know when her child’s school will re-open, it would probably not be reasonable for her to simply stay away from work until such time as the school re-opens. However, it would be reasonable for her to take one or two days to try and arrange alternative childcare.
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.
In the situation described, both you and the employee need to be flexible. It might be that arrangements can be made for her to work from home, or if this is not practicable, maybe working flexibly for a temporary period with staggered start and finish times may assist.
6. Many of the components for our products are manufactured in China/other areas affected by coronavirus and we are concerned that this will lead to disruption in our supply chain. What are our obligations to our employees if a lack of parts/components means that we don’t have enough work for them to do?
Today’s supply chains are increasingly global in nature and many are therefore vulnerable to potential disruption due to the coronavirus, e.g. if factories in China/other affected areas are short-staffed, or even subject to temporary closure, and therefore unable to fulfil orders.
Some businesses which depend on suppliers based in China/other affected areas are stockpiling products in order to mitigate these risks. However, if the disruption continues and they have not been able to stockpile sufficient volumes or obtain parts from alternative suppliers, businesses may need to consider closing some of their production facilities or reducing production volumes – not because of the virus itself but because they will not have the parts they need to continue production at normal levels.
Employers in this situation should be aware that temporarily laying employees off without pay, or cutting back their hours with a corresponding reduction in pay, is likely to be a breach of contract, unless the employment contract expressly permits it. However, contractual clauses of this kind are relatively rare in practice and, even where they do exist, employers should not seek to rely on them without first consulting with affected employees. In addition, employees who are laid off or put on short-time working may be entitled to statutory guarantee payments, or to statutory redundancy pay if the lay-off/short-time working persists.
In extreme cases, where a business has to cease or significantly reduce production for the long-term, it may be necessary to consider dismissing some employees as redundant. In these circumstances, employers will need to take care to consult with affected employees – both individually and, if the number of dismissals is high enough to trigger statutory collective consultation obligations, collectively via appropriate employee representatives.
If you are concerned about the impact of coronavirus on your supply chain, we would like to hear your comments so that we can feed them back in our discussions with government. Please contact Verity Davidge by email to [email protected]