Posted by James Sage, Partner
Coronavirus FAQs: HR & workforce issues for social care providers
We have been providing extensive advice to care providers on managing the workforce issues arising out of the Coronavirus pandemic. Here are our answers to some FAQs we have received.
Q: Can you require an employee to self-isolate?
You may want to require employees to remain at home when they are exhibiting symptoms of Coronavirus or fall within the guidance for self-isolation issued by Public Health England. Staff may not want to self-isolate if their income will reduce; however, in these circumstances, you may be entitled to treat the employee as on sick leave.
However, if the employee is asymptomatic or does not fall within Public Health England guidance to self-isolate, you may be required to suspend on full pay if you require them to remain away from work.
Q. Are employees entitled to Statutory Sick Pay if they self-isolate?
Employees are entitled to Statutory Sick Pay (SSP) if they are self-isolating because:
- They have coronavirus or symptoms (e.g. high temperature or a continuous cough)
- A member of their household has coronavirus or symptoms
- They have been told to self-isolate by a doctor or NHS 111
Q: What is the rate of SSP?
Currently £94.25 per week but it increases to £95.85 on 6 April 2020.
Q: When does entitlement to SSP start?
The Government intends to introduce emergency legislation to temporarily make SSP payable from the first day of sickness absence, rather than the fourth day of absence. Although this has not yet been implemented the Government website says it takes effect from 13 March 2020.
Q: Is there any Government support for these additional SSP costs?
The Chancellor of the Exchequer has announced that the Government will reimburse employers with less than 250 employees for the first 14 days of SSP paid to employees. Details of how to re-claim the payments have not yet been released.
Q: Can staff book holiday for periods of self-isolation?
Staff may request holiday to avoid a drop in income if they are forced to self-isolate and it is fine for you to grant it. However, staff cannot be compelled to take holiday when they are on sick leave.
Q: Are there any special considerations for staff with underlying health conditions?
Employees with underlying health conditions or disabilities are likely to be feeling anxious about the potential impact of Coronavirus. It is important to take the time to discuss their specific concerns and develop a plan for managing risk and making any necessary reasonable adjustments to their role. You should also signpost them to the latest Public Health England guidance so they can assess whether they are at increased risk. Public Health England guidance is changing regularly so it is important that you keep up to date with developments.
Q: Do employees have the right to be notified if a colleague develops the virus?
Employees must be notified of the infection risk as soon as possible. However, the identity of the individual should not be disclosed for data protection reasons. You should simply advise that an employee who has been in the workplace has been infected and set out appropriate precautions and guidance.
Q: Can we restrict staff from booking and taking holiday?
You might want to restrict staff taking holidays to help maintain sufficient staffing levels at this challenging time.
If you have already accepted a holiday request, it is also still possible to give notice to cancel it. The notice given must be as many days’ notice as the period of holiday to which it relates (e.g. a week’s notice for a week’s holiday).
However, you should exercise caution. If the employee has already made travel plans based on the accepted holiday request, they may seek compensation for the cancellation charges. You also need to be mindful of the risk of constructive unfair dismissal claims but there may be ways to mitigate this risk.
Q: Can we restrict staff from travelling abroad?
You may want to restrict staff from travelling abroad to try and reduce risks of acquiring and spreading Coronavirus. You can instruct employees not to travel to an area which the FCO has designated as “advise against all travel” or “advise against all but essential travel”. You can also say that employees will not be permitted to take annual leave to travel to one of these regions and if they do to consider whether to treat it as a potential disciplinary offence.
Q: Are employees entitled to paid leave if they are unable to come into work because schools/nurseries are closed?
In these circumstances, employees have a statutory right to dependant’s leave, which is unpaid (unless the contract provides more favourable terms). Employees are entitled to take “reasonable” time off to put alternative care arrangements in place. However, in practice it might be difficult to find alternative childcare cover, which might lead to longer periods of absence being reasonable.
Employees could also request unpaid parental leave to follow on from the dependants leave subject to certain qualifying conditions.
We would recommend consulting with staff now about what their childcare responsibilities are likely to be, how long it is likely to take to find cover, and whether there are any alternative hours they could work in the interim. You could then prepare a “crisis rota” to ensure you have adequate cover if schools are closed.
Q: Do we have to pay SSP if the employee can’t provide a Fit Note?
It may not be possible for an employee to obtain a Fit Note, particularly if they are self-isolating. You should therefore be flexible in your approach and make SSP payments unless you have good reason to doubt the absence is genuine.
The Government also announced that a temporary alternative to the Fit Note will be introduced in the coming weeks which can be used for the duration of the COVID-19 outbreak. This system will enable people who are advised to self-isolate to obtain a notification via NHS 111 which they can use as evidence for absence from work, where necessary.
Q: When can lay off and short-time working be used?
The right to lay employees off or to require short-time working is purely a matter of contract. If there is a contractual right to lay off, there should be no difficulty in doing so. If there is no contractual right, it is likely to be unlawful to impose it unilaterally.
An employee who is laid off is entitled to a statutory guarantee payment for up to 5 days at a statutory rate (currently £29 per day). After four weeks of being laid off or working short time, an employee has the right to request a redundancy payment.
Please note that these FAQs were prepared on and are current as of 18 March 2020.
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We understand that you may need significant support with HR and employment law issues in this challenging time. To discuss how we can support you please contact James Sage in our specialist Health & Social Care team.
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