Self-isolation and Social Distancing
1. When should I self-isolate?
The current guidance provides that :
From 13 March 2020, anyone with flu-like symptoms, defined as a fever of 37.8c or a persistent cough is to stay at home. If they reside with other people they should ensure that everyone in their household remains at home. The current guidance updated from 16 March 2020 provides that: – If a person lives alone they should remain at home for at least 7 days from when their symptoms first began. – For those who live with others the first person in the household to show symptoms should self-isolate for seven days. Anyone else in the household who shows symptoms should self-isolate for 7 days from the day the symptoms start. If someone in the household does not exhibit symptoms they must self-isolate for 14 days from the date the first person in the household exhibited symptoms. If a member of the household shows symptoms they should remain at home for seven days, regardless of what day they are on in the original 14 day isolation period.
Please click here for the Government’s latest guidance on people returning from abroad; the latest guidance on the “lockdown” click here; detailed guidance about which businesses should close click here; and detailed guidance about those who are advised to follow the guidance on “shielding" click here.
Those who are advised to abide by the guidance on shielding are those who the Government for medical reasons deems to be very vulnerable to serious illness from coronavirus. They are also advisied to abide by the guidelines on social distancing.
As an employer if any of your employees falls into any of these groups you should ensure that you give them instructions on the social distancing, self-isolation and shielding rules.
2. Can I send an employee home from work to self-isolate?
Yes you can if there is good reason for doing so. A good reason would probably be if an employee is exhibiting the symptoms of coronavirus or if the employee informs you that a member of their household is exhibiting coronavirus symptoms and is self-isolating. In this case you would have to treat the employee as being on sick leave and would have to pay them SSP or contractual sick pay whichever is applicable.
However if you decide to send the employee home when they are not exhibiting any symptoms and don’t fall within any of the self-isolation categories you may have to pay the employee full pay for insisting the employee stay at home and work from home. If there is no work for the employee to do from home then you may wish to consider furloughing the employee, laying the employee off or asking the employee to take paid or unpaid annual leave. This is all subject to the provisions in the employee’s contract of employment and the employee’s consent.
1. I understand that the over -70s could be required to self-isolate for up to 12 months. I am 73 years old and run my business. I employ 7 workers. What can I do if this were to be made law?
If this were to happen we would need the full details. The Government may make this voluntary or compulsory. It is difficult to see the Government making this compulsory with penalties for breach.
As the director and guiding light of your business you may wish to consider alternatives that would ensure that if you were not in a position to run your business you have someone who can assist. Do you have a deputy or a friend or member of your family who can assist you? There are several possibilities – remote working being the most obvious. Most business can operate remotely. You may wish to ensure that your business has the technology it needs to enable you communicate with your staff and have meetings with them as appropriate.
You should also have due regard to the health and safety of all your employees and those employees who are over 70 years old. You may wish to ensure that they are all computer literate so that they can work from home if need be.
2. One of my employees has told me that he does not want to work from the office because he has children and does not want to contract coronavirus from staff in the office. What do I do?
If your member of staff does not wish to work from the office but does not fall within any of of the categories that should self-isolate, you should listen to his concerns and read the latest Government guidance before deciding on what to do. As you are already aware the Government has advised that wherever possible all employees should now be working from home.
If the member of staff falls within a high risk group and is really concerned about contracting coronavirus you should discuss with the employee and see whether there any ways or steps that you can take to alleviate their concerns. If the employee can work from home using technology you may wish to agree to the employee working from home. If the member of staff is disabled allowing him/her to work from home would count as a reasonable adjustment under the Equality Act 2010. Failure to allow the member of staff to work from home if the member of staff were disabled could be deemed to be discrimination if the member of staff were to issue proceedings in the Employment Tribunal.
You may also wish to suggest that the member of staff take paid annual leave or unpaid leave for a specific period of time.
You should also ensure that all staff in your office practice safe hygiene and social distancing and that all surfaces are regularly disinfected. If after considering the member of staff’s reasons you are convinced that the member does not have a good reason for not wanting to work from the office and you cannot make any reasonable adjustments you need to be frank with the member of staff. If the member of staff decides not to attend work you can treat his/her absence as an unauthorised absence and inform him/her that he will not be paid.
We would advise that you contact us for advice if you are faced with this kind of problem.
3. Can I furlough a worker who is shielding?
Yes you can. Under the latest Government Guidance a worker who is shielding is not entitled to Statutory Sick Pay and should not be attending work. If the employee or worker cannot work from home you are entitled to furlough the worker.
4. One of my employees has been absent from work on annual leave for two weeks as she has to care for her children now schools are closed. She has almost exhausted her annual leave and is worried about losing pay. She is a good worker and I would like to retain her however I cannot afford to continue to pay her whilst she is off work.
You have several options – You can furlough her under the Coronavirus Job Retention Scheme, grant her dependents leave or agree with her that she could work from home. You are under no obligation to pay her if she decides to take dependents leave. It all depends on your business’s finances.
5. Must I pay a member of staff who is self-isolating due to sickness or if they are following Government guidance?
Yes the member of staff is entitled to SSP or contractual sick pay depending on the terms of their contract.
6. My member of staff who is self-isolating has emailed me to tell me that he is entitled to SSP from day one of his sickness absence. I have always paid SSP from the fourth (4th) day of an employee’s sickness absence.
Yes. The Government’s regulations now permit payment of SSP from day one of an employee’s absence from work (rather than day four), where the member of staff is incapable, or deemed to be incapable, of working due to coronavirus. This applies retrospectively for absence on or after 13 March 2020.
7. My accountant has told me that I can reclaim the cost of SSP from the Government. Is that true?
Yes it is. On 11 March 2020 the Chancellor Mr Rishi Sunak announced that employers with fewer than 250 employees will be able to recover the cost of SSP for work absences due to coronavirus.
Employers will be able to reclaim two weeks SSP for eligible employees off work due to coronavirus. Please see the Government Guidance for employers who qualify to reclaim SSP.
8. Can I insist that my employees provide fit notes if they are absent for coronavirus reasons?
The standard rule is that employees can self-certify their absence for the first 7 days of their absence. It is then up to the employer to decide what evidence they require from the employee if the employee is still absent from work. The Government has introduced an alternative to a fit note- the “isolation note”. This can be obtained electronically via the NHS Website, NHS111 Online or the NHS App. To maintain good relations with your staff we would advise that you do not insist that each employee should provide a “fit note”. In these unsettling times it is essential to take a reasonable approach in accordance with Government guidance.
9. Can a member of staff who is self-isolating be required to work from home?
If the member of staff is showing symptoms of coronavirus and is unable to work, the member of staff is sick and should not be working. Their absence should be treated as sick leave.
However if the member of staff is not showing any symptoms and is still able to work then with the member of staff’s consent you may require the member of staff to work from home. However please note that for the purpose of SSP regulations, if the member of staff is self-isolating in line with the Government’s guidance the employee is considered to be sick and should be entitled to SSP and not contractual pay.
10. Must I carry out a risk assessment before allowing employees to work from home?
As an employer you are under an obligation to protect the health, safety and welfare of your employees wherever they are working. If your employees work from home you must carry out a risk assessment of their work activities and take appropriate measures to reduce any associated risks. Please see the Health and Safety Executive guidance can be found here.
If however your employees are asked to work from home at short notice you should take a reasonable common sense approach and should assess the risk levels for each of your employees by meeting with them and speaking to them and providing them with any aids they may require. You should also have a Homeworking policy. Our employment lawyers can prepare a Homeworking policy for you if you do not have one.
11. Data Protection: If a member of staff has contracted coronavirus and is self-isolating at home can I tell my other members of staff?
Under the Data Protection Act 2018 data about a member of staff’s health is a “special category of personal data”. So whilst you are obliged to inform other members of staff of the possibility there may have been a risk of infection from a staff member you should not divulge the name of the affected member of staff. You should just say that a member os staff has been diagnosed with coronavirus and that steps have been taken to safeguard the remaining members of staff.
It is obvious that even if you do not reveal the name of the affected member of staff, other members of staff are likely to guess the identity of the staff member
The important thing is to ensure that you do not give out information that is not necessary.
12. My business is suffering. Can I make staff redundant or lay off staff?
Before you consider making staff redundant or laying off staff you should consider furloughing staff under the Coronavirus Job Retention Scheme (CJRS). Click here for more information on CJRS.
You should however note that lay-off is only allowed if the employee’s contract of employment contains an express lay-off clause in the employee’s contract. Lay-off without an express clause in the contract would be a breach of contract entitling the employee to resign and claim constructive dismissal and/or institute an unlawful deductions from wages claim for non-payment of wages .
If you decide to make redundancies, you should ensure that you follow the statutory redundancy procedure. Please click here for information on Re organisation and Redundancies.
You should also note that employees are more likely to agree layoff for a specific time period as opposed to redundancy.
Please contact us if you are considering any of these options.
13. If a member of staff cannot take all their annual leave this year because of the pandemic can they carry it forward to the next leave year?
Yes they can. The Government introduced emergency legislation on 27 March 2020 which permits members of staff to carry-forward their 4 weeks leave under the Working Time Directive (WTR) If it has not been “reasonably practicable” for the member of staff to take annual leave in a leave year as a result of the coronavirus pandemic. This leave must be taken within two leave years of the year in which it should have been taken. The member of staff will also be entitled to payment in lieu if they have not taken the leave on termination of their employment.
However please note that the carry-over dispensation does not apply to the additional 1.6 weeks statutory leave under WTR or any additional contractual leave the member of staff has. The Government’s announcement can be found here.
14. One of my members of staff is expecting a baby in a month’s time and is self-isolating. If she self-isolates and receives SSP, will this impact on her statutory maternity pay (SMP)?
The regulations stipulate that SSP counts as earnings for the purpose of calculating SMP. Therefore, if she is paid SSP at any time during the relevant period for calculating SMP it will reduce her earnings for the purpose of SMP. SMP is calculated in the 8 weeks working backwards from the 15th week before the expected week of childbirth (or the date of giving birth if that is earlier).
15. One of my employees has asked to take time off work to volunteer to help support essential services at his local hospital. Prior to starting employment with us he used to be a paramedic. Am I obliged to grant him time off?
The Coronavirus Act 2020, which became effective on 25 March, introduced emergency volunteer leave (EVL) which is a new form of unpaid statutory leave.
In order to take such leave your employee must obtain a certificate from a local authority, the Department of Health or the NHS Commissioning Board or the Department of Health) to act as an emergency volunteer to help reduce pressure on essential services during the pandemic. The initial volunteering period is 16 weeks from the date the Act came into effect and this can be extended. The leave can be taken in blocks of two, three or four weeks. Staff in businesses with fewer than 10 workers, crown employees, the police, and certain other groups do not have the right to take EVL.
Your employee must give you 3 working days’ notice and produce the certificate. You are not obliged to pay your employee whilst he/she is on EVL but you may agree with your employee that the time off be taken as paid annual leave or unpaid leave.
The Government has announced that it will be setting up a UK-wide fund to compensate volunteers for loss of earnings and their reasonable incurred expenses.
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If you need someone to speak to in relation to handling your workforce during these unprecedented times, call our Coronavirus Helpline on 01234 938089 or e-mail us at firstname.lastname@example.org and one of our Helpline team member will be in touch.
We are specialist Employment Solicitors based in Bedford and operate nationally.