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Update 3: coronavirus advice note for employers

Gateley Legal

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Issued on 13 March, an update to our advice note 1 on COVID-19 issued 4 March 2020. The World Health Organisation has now confirmed that the spread of COVID-19 amounts to a global pandemic.

The Chancellor, in this week’s Budget, confirmed that it is projected that up to 20% of the workforce may be off during the peak of the epidemic. 

The challenge facing UK employers as they deal with the direct and indirect impacts of the COVID-19 outbreak on their businesses and workforce should not be underestimated. In this note we will answer some frequently asked questions on the current situation from an employment perspective to assist employers as they navigate their way through this fast-moving crisis. 

What is the current scope of the advice to self-isolate?

On 12th March 2020 the Government published “Stay at home: guidance for people with confirmed or possible coronavirus (COVID-19)”.

This directs that those with symptoms of coronavirus - new continuous cough and/or high temperature should self-isolate even where the symptoms are mild.

The guidance on the length of self-isolation has changed from 14 days to 7 days save that 14 days still applies in the circumstances described below.

As the suggested period of absence is seven days, the period off work would usually be covered by self-certification. The Government’s advice on this extension to self-isolation is that these individuals should only call NHS111 or their GP if they are not recovered and able to return to work after 7 days.

The 14-day period discussed in our previous COVID-19 advice still applies for those who have returned from certain listed countries or have had exposure to a confirmed case but have not shown symptoms. The 14 days represents the potential incubation period before the symptoms tend to show. 
 

How will I know that someone has genuinely been told to self-isolate?

The employee will not need to show that they have been told to self-isolate. They have only to follow latest published Government guidance.

The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 (SI 2020/287) were published on 12 March and come into force on 13 March 2020.

These Regulations amend the Statutory Sick Pay (General) Regulations 1982 reg.2(1), which provides for categories of people to be treated as incapable of work for the purposes of claiming statutory sick pay, to provide that a person who is isolating himself from others in accordance with advice on coronavirus disease is deemed to be incapable of work.

The amending Regulations will remain in force for 8 months unless reviewed earlier.

What is the situation if an employee is unable to get a fit note to cover their absence?

After 7 days, it is for the employer to determine what evidence they require, if any, from the employee. This does not need to be a fit note (Med 3 form) issued by a GP or other doctor.

On 10 March the Government issued guidance for employers which “strongly suggests that employers use their discretion around the need for medical evidence for a period of absence where an employee is advised to stay at home due to suspected COVID-19, in accordance with the public health advice being issued by the government”.

If an employee doesn’t agree with the employer’s decision about their Statutory Sick Pay entitlement, they can ask HM Revenue and Customs to make a formal decision. Disputes regarding entitlement to statutory payments may proceed in the Lower Tribunal not the Employment Tribunal.

Is statutory sick pay payable from Day 1 now?

The Prime Minister announced that statutory sick pay would be payable from the 1st day of absence as a temporary measure on 4th March 2020 but, as yet, there is no legislation putting this change into legal effect. It is likely to be set out in emergency legislation to be published next week. 

What about paying atypical workers?

Workers, those working on Zero Hours Contracts and Agency Workers who can demonstrate that they earn in excess of £118 per week will be eligible for SSP if they self-isolate or are otherwise sick.

Consultants and those who are genuinely self-employed have no entitlement to SSP in any circumstances, including notified self-isolation.

What is the situation with pay if the employer requires staff to leave the workplace?

If the employer requires its employees to temporarily leave the workplace owing to a downturn in work associated with COVID-19 then, unless there is an express lay-off provision in the contract of employment, all employees who are otherwise ready and willing to attend work would be entitled to full pay during any shutdown.

The position is the same if the employer has concerns regarding an employee and decides to take a conservative approach by requiring that employee to stay away from work in circumstances where they are not required to self-isolate and are not sick - the employee should still receive full pay.

What financial assistance will be provided to businesses to deal with these and other additional costs?

The Budget announcement on 11th March contained several measures intended to assist employers and the workforce in the face of the negative impacts of COVID-19:

SMEs (employers with fewer than 250 employees as at 28 February 2020) will be entitled to a refund of the first 14 days of statutory sick pay paid to staff during the current crisis. This is aimed at reducing the financial impact of self-isolation on SMEs.

SMEs will also be able to apply for a loan under the temporary Coronavirus Business Interruption Loan Scheme which is in the process of being set up. The government will provide lenders with a guarantee of 80% on each loan (subject to a per-lender cap on claims) to give lenders further confidence in continuing to provide finance to SMEs. 

There will also be an increase to the Business Rates retail discount in England to 100% for the 2020 to 2021 tax year for properties below £51,000 rateable value. The relief will also be expanded to the leisure and hospitality sectors in response to COVID-19. Those businesses eligible for the newly expanded retail discount and/or the new pubs discount may need to apply to their local authority to receive the discount. Guidance for local authorities on the application of the expanded retail discount will be published by 20 March.

The Government also recently announced that COVID-19 will be registered as a notifiable disease in the UK which may help businesses seeking to claim losses flowing from the current crisis via their insurance policies. Employers should check the terms of their insurance but, judging by the response of insurers to this development, its impact may be limited - AXA and several other major insurers have confirmed that they list all covered diseases in their policies on business interruption and that the Government’s registration of COVID-19 as a notifiable disease would not mean that their policies would now cover it. 

What practical steps should my business be considering to reduce the impact of this crisis?

  1. Take pro-active measures to ensure that the workplace environment is clean, that hand washing facilities are readily available and that advice is issued about workplace hygiene.
  2. Consider allowing employees to work from home to reduce the risk of workplace contamination.
  3. Consider holding meetings by phone or video conference rather than face-to-face.
  4. Look at work pipelines strategically so that any critical tasks are undertaken without delay now. The Government said today that they believe that the UK is around four weeks behind Italy in terms of the spread of COVID-19. Businesses may have some time now to complete critical tasks before disruption becomes more widespread.
  5. Put in place measures to allow a wider section of the workforce to work remotely. This could include purchasing laptops and setting up more employees to allow them to work away from the office.
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