Coronavirus illness and isolation – what are employees’ rights and employers’ obligations?

2021 began on a darker note than most of us had hoped for and with new virulent strains of the Covid-19 virus in our midst, increasingly everyone knows somebody who has had the Coronavirus or is having to self-isolate because of it. With people unwell at home or getting the ping on the NHS Test and Trace app to self-isolate, many of you have been raising questions around what are the rules for employers who have employees off work? Alexis Lane, Employment Solicitor, explains…

Firstly, what is an employer’s responsibility to make the workplace safe during the Coronavirus pandemic?

It is important to note that all employers are responsible for the health and safety of their staff regardless of the Coronavirus, so these basic employment welfare principles have always applied to the workplace. It should be noted that the term employees includes:

• full-time and part-time employees
• employees on agency contracts
• employees on flexible or zero-hour contracts
• fixed term contracts (until the date their contract ends)

Employers need to keep their employees as safe as possible in the workplace by taking steps to mitigate the risk of spreading Covid-19. There are many types of workplace, – offices, warehouses, factories or vehicles – and employers need to make well-formed Covid-19 plans and judgements depending on the scenario. This might include asking people who are able to work from home to do so, staggering employee shifts, ensuring social distancing, encouraging and reminding employees to regularly wash hands, cleaning of surfaces and keeping indoor spaces well ventilated.

Employees also have a duty to support safe working and so should respond positively to reasonable requests from employers to keep the environment COVID safe.

How should employers support employees who have to self-isolate because of Covid-19?

If an employee is notified by NHS Test and Trace of a positive test result, they must complete their full isolation period, which starts from when their symptoms started, or, if they did not have any symptoms, from when their test was taken. Their isolation period is 10 full days.

If an employee is isolating because of a positive test result but did not have any symptoms, and they develop Covid-19 symptoms within their isolation period, they need to start a new 10-day isolation period by counting 10 full days from the day following their symptom onset.

Employers should support their employees who need to comply with Covid-19 public health self-isolation guidelines not requiring an employee to return to work before the necessary isolation period is completed and if an employee does attempt to attend work when they should be self-isolating an employer should send them home immediately for their own safety and that of others.

Furthermore, in addition to the care an employer would normally display should any employee in the workplace become unwell, if exhibiting Covid-19 symptoms while at work, (a new continuous cough; a fever/high temperature 37.8 degrees above before treatment; and/or a loss/ change in smell or taste), the employee should be sent home immediately to self-isolate, wear a face covering on the journey home and avoid public transport.

Do employers have to close their place of business if there has been a Covid-19 case?

An employer does not need to close their place of business if there has been a Covid-19 case on their premises but they should follow deep cleaning guidance as there may be a risk of others contracting Coronavirus from contaminated surfaces and the infected worker’s personal belongings. The government has published guidance on cleaning non-healthcare workplace settings after an individual with a confirmed case of Coronavirus infection has left the setting.

Do employers have to notify all employees if there has been a case of Covid-19 in their workplace?

There is no law that specifically requires employers to inform workers about a positive Covid-19 case in the workplace, however employers may need to keep staff informed about cases because of their health and safety obligations, especially if it is possible that other employees may have been exposed to someone who has tested positive.

Because of an employer’s data protection obligations, they should disclose no more information than is necessary and they should not name the individual who has tested positive for Covid-19 unless they have asked for consent from that person to reveal their identity.

Can employers require their employees to take a Coronavirus test?

Covid-19 testing via the NHS is currently only recommended for individuals showing symptoms, but it may be possible to secure a private Coronavirus test at the employer’s expense. However, an employee must give their consent to undertake a medical procedure, such as a Coronavirus test, and it is unlikely that their employment contract will grant the employer the right to insist on such testing.

This means that if an employer feels that private Covid-19 testing is a reasonable request of its employees to safeguard the workforce and/or customer and suppliers, the employer’s approach should be to encourage staff to engage in Coronavirus testing when this is available, rather than trying to force them to do so. The introduction of workplace-based Coronavirus testing programmes is very complex and specific employment law advice should be sought.

Can an employer compel their employees to use a Test and Trace app on their mobile phones?

The Government has encouraged people to download its NHS Test and Trace app that alerts smartphone users who have come into close contact with someone who has tested positive for Covid-19. If employers who wish to compel all of their staff to download and use the contract tracing app, they need to consider whether this request would be deemed ‘reasonable’ to safeguard the workforce and/or customer and suppliers.

Factors to consider include are all staff provided with an employer-provided phone and/or do they keep it on their person at all times in the workplace? If not, if the Test and Trace app was installed on a personal phone how would the employers enforce and monitor this? There are many different challenges from a data protection and employment law perspective, and an employer should conduct a detailed impact assessment to identify the potential privacy risks before pursuing such a policy. The employment relationship is based on trust, COVID does not change that dynamic and so it is as important as ever for that positive relationship to be informed, informing and engaging with employees about COVID policies and plans is the best way to ensure everyone understands their obligations and why they may be necessary.

Do employees have to provide proof to their employers that they either have Covid-19 or have been asked to self-isolate?

As with any illness, for the first 7 days off work, employees can self-certify so they don’t need any evidence for their employer. After that, employers may ask for evidence of sickness absence. Where this is related to having symptoms of Coronavirus or living with someone who has symptoms, an isolation note can be used to provide evidence of the advice to self-isolate.
Employees can obtain an isolation note without contacting a doctor through NHS website and/or NHS 111 online. The isolation note will be emailed to the employee or if they don’t have an email address, they can be sent to a family member, friend, or directly to their employer. The service can also be used to generate an isolation note on behalf of someone else.

An employer can check that a Coronavirus isolation note is valid online as long as they have the 16-digit reference number on the isolation note and the employee’s date of birth.

What is an employee’s entitlement to Statutory Sick Pay (SSP) regarding Covid-19?

The weekly rate of SSP since 6 April 2020 is £95.85. Employees are entitled to SSP if
• they have Coronavirus symptoms
• are self-isolating because someone they live with has symptoms
• are self-isolating because they’ve been notified by the NHS or public health bodies that they’ve come into contact with someone with Coronavirus
• have been advised by letter to shield because they’re clinically extremely vulnerable and at very high risk of severe illness from Coronavirus
• have been notified by the NHS to self-isolate before surgery for up to 14 days

A ‘qualifying day’ for SSP is a day an employee usually works on. If an employer who pays more than the weekly rate of SSP they can only claim up to the weekly rate paid.

If someone is self-isolating with no symptoms, are they entitled to contractual sick pay or just SSP?

Anyone who is self-isolating because they live with someone who has Covid-19 or have been notified by the NHS Test and Trace app or public health authorities that the should -self isolate because they have been in close proximity to someone who has Covid-19 is entitled to SSP. In most cases employees will be entitled to SSP from the first day of their absence.
They may also be entitled to contractual sick pay but this will depend on the wording of the policy and how the employer has applied it to others.

What about employees who make the choice themselves to self-isolate?

Some people are choosing to self-isolate because they are frightened of contracting the disease, or spreading it to others they care for. If they can work from home, then an employer should pay them. However, if it’s reasonable to expect them to work, which needs to be judged in the specific context, then the employers could treat this as unauthorised absence and can refuse to pay them. This step should be taken following specialist employment advice to avoid claims for breach of contract or unlawful deductions from wages.

What about people who are shielding because of Covid-19?

The Government had advised that those considered to be clinically extremely vulnerable should shield at home and socially distance themselves from others. Employees in this group will have received a letter from the NHS or from their GP telling them this and this will act as evidence for their employer that they are advised to shield and are entitled to SSP if they are unable to work from home. Members of the household who are not clinically extremely vulnerable should continue to attend work if they are unable to work from home, in line with the wider rules set out in the national lockdown guidance.

If staff are having to self-isolate during a pre-booked holiday period can they reclaim their holiday?

This is a tricky one and will partly depend on the reason they are self-isolating. If an employee is ill with Coronavirus or have symptoms related to it the normal rules apply – their employer must allow them to take their holiday at another time – even if this means allowing them to carry the leave over to another year. An employee does not have to ask to take annual leave whilst sick to preserve their right to take it at a later date, or to carry it over. However, this only applies to the first four weeks of paid holiday and employers don’t have to allow them to reschedule any other leave.

The right to accrue annual leave does not continue indefinitely and employers can impose a “cut-off date” of up to 18 months from the end of the leave year in which the holiday accrued (although it might be possible to reduce this to 15 months).

An employer cannot ask a sick employee to demonstrate that they are physically unable to take annual leave whilst they are sick however an employer can insist that they provide evidence of their illness such as official notification of a positive Coronavirus test.

If they are self-isolating because someone in their house has symptoms of Coronavirus or they have received a ‘stay at home’ message via the NHS Test and Trace app, but they are otherwise well, then the position is less clear. They are entitled to SSP because deemed incapacity, but that is not, necessarily, enough to bring them within the law on rescheduling of annual leave for employees who are incapable of work due to ill health. Employers can therefore use their discretion but need to make sure that they exercise it consistently and don’t treat one group of individuals more favourably than others.

If an employee is receiving SSP only, it may be worth asking if they would like to take holiday so as pay can be at the full rate. This should be managed in line with the employer’s usual welfare discussions with employees.

What about an employee who has come back from abroad?

From 8 June 2020, some people entering or returning to the UK will be required to quarantine. If an employee is unable to work during this period, they will not qualify for SSP unless they also meet one of the above criteria.

Can an employer claim back statutory sick (SSP) paid to employees due to Covid-19?

The Coronavirus Statutory Sick Pay Rebate Scheme allows smaller employers to reclaim some or all of the Statutory Sick Pay (SSP) paid to employees who are absent from work due to a Coronavirus-related absence.
An employer is eligible to use the scheme if the employer had fewer than 250 employees across all their PAYE payroll schemes on 28 February 2020 and has paid sick pay to an employee who was absent from work as a result of a Coronavirus-related absence. The ability to reclaim SSP is not limited to that payable to employees with Coronavirus symptoms; it also applies to SSP paid to employees who are required to shield or to self-isolate as a result of Covid-19.

An employer can make more than one claim per employee, but they cannot claim for more than 2 weeks in total, starting from the employees first qualifying day of sickness. Employers can claim back up to 2 weeks of SSP if:
• they have already paid their employee’s sick pay (use the SSP calculator to work out how much to pay)
• they are claiming for an employee who’s eligible for sick pay due to the Coronavirus
• they have a PAYE payroll scheme that was created and started on or before 28 February 2020
• they had fewer than 250 employees on 28 February 2020 across all your PAYE payroll schemes

Employees do not have to give their employers a doctor’s fit note for them to be able to make a claim but should provide an isolation note from the NHS if they are self-isolating and cannot work because of Coronavirus or a ‘shielding note’ or a letter from their doctor or health authority advising them to shield because they’re at high risk of severe illness from Coronavirus.

If an employer is claiming for wage costs through the Coronavirus Job Retention Scheme, they can claim back from both the Coronavirus Job Retention Scheme and the Coronavirus Statutory Sick Pay Rebate Scheme for the same employee but not for the same period of time.
If you’re an employer who pays more than the weekly rate of SSP you can only claim up to the weekly rate paid.

Covid-19 and Beyond

Many questions around safe working practices apply outside of the COVID dynamic, to everyday working life. Managing absence, creating a safe working environment, communication and motivating employees. Now is a good time to reflect on working practices, policies and also the general approach to staff welfare. Is everything up to date and fit for purpose? Is there positive employee relations and engagement? Taking time to reflect on these points will be time well spent during the pandemic and when we are all released back in the world.

If you would like any help with the above or in conduction a review of current practices, or if you are an employee and have questions about your current working environment, please get in touch with Alexis Lane on 01491 570 909 or a.lane@thpsolicitors.co.uk