Whilst there have been reported cases of coronavirus in the UK, the numbers are currently very low (nine reported cases as at the date of publication). Businesses whose work includes travel to highly affected countries will be those principally concerned with how they should deal with employee-related issues in relation to the virus. However, as evidenced by recent reported cases, the ease at which the coronavirus spreads means all employers should be concerned about the health of those employees who choose to travel to affected areas outside of work or who come into contact with friends, family or even members of the public who have been in contact with people (often unknowingly) carrying the coronavirus.
As such, the coronavirus raises a number of issues that will need to be handled carefully in the employment arena to minimise the legal risks and to alleviate potential employee concerns.
What is the coronavirus?
Coronavirus (2019-nCoV) derives from a family of viruses that historically caused diseases in animals but which has since spread to infect humans. The symptoms are similar to those of flu and include tiredness, a dry cough and high temperature. These symptoms can develop into more serious medical conditions such as pneumonia and kidney failure.
The virus can be transmitted from human to human and is known to cause more severe symptoms in the elderly, people with weaker immune systems and people with long term medical conditions such as diabetes or cancer. The current death rate for coronavirus is around 2%. The coronavirus has been reported as active in over 25 countries, including Thailand, Japan, Hong Kong and Singapore. One of the areas of greatest concern is China.
What are the concerns for employers?
Employers have a statutory duty to ensure the health and safety of employees whilst at work and to identify risks, assess them and reduce them to the lowest practicable level. It goes without saying that an employer will not wish any employee to be put at risk of contracting the coronavirus while at work. Therefore, it is important for businesses to understand their legal obligations and risks in this area. In addition to the harm caused to employees and business disruption, the failure by a business to properly identify employees at risk and put in place adequate measures to eradicate or reduce risk to the lowest practicable levels could trigger civil action or in the most serious cases, regulatory investigation and prosecution in the criminal courts.
As is evident from the spread of coronavirus, it is not only employees undertaking work travel who are at risk; employers must be prepared for the fact that their staff may be infected by another person, leading to that individual being 'voluntarily quarantined' for at least two weeks.
To address these concerns, we recommend that employers consider the following and particularly where staff will be travelling to the infected areas:
1. Can an employer prevent an employee from travelling to a highly affected area?
In relation to work travel, employers may want to avoid, and may well be able to prevent, employees travelling to highly affected areas, although this will need to be handled sensitively and will require a risk assessment.
Making clear the potential risks to employees and delaying travel until more is known may be a sensible approach and employers should consider engaging with their workforce to address the issue and think carefully about any policy to be adopted. Any policy that is applied must not have an unjustifiable discriminatory impact and should apply fairly across the workforce.
From a practical perspective, it may be that interim measures are the solution. For example, is it possible for the employee to carry out their work via Skype or video conferencing for a limited period?
The issue is obviously more tricky when an employee wishes to travel for personal reasons. Whilst an employer cannot prevent an employee exercising their right to spend their 'holiday time' where they choose, employers can: reaffirm the government guidance; reiterate their obligation to protect the welfare of all employees; and ask employees to keep them informed of any travel plans or other circumstances which may put the employee at increased risk of exposure to the coronavirus.
2. When can employees be prevented from coming to work?
Medical advice indicates that the coronavirus can be spread between humans in much the same way as the common cold. This has led to individuals being quarantined and the government guidance advises people to remain at home for 14 days after arriving from Wuhan or Hubei Province (or elsewhere in China if they have symptoms) and to stay away from work, school or public areas. The government has also this week introduced new regulations, giving powers to impose a period of quarantine on an individual (against their will), if they are thought to be at risk of spreading the virus.
Employers following government guidance are likely to be justified in requiring an employee who has visited a highly affected coronavirus region to remain at home. Where an employee claims to be unwell or displays any flu like symptoms, the situation is straightforward. However, if the employee is not signed off sick then the requirement for them to remain away from work should be exercised cautiously, with respect for the employee's privacy and consistently across the workforce. In reality, given the media coverage of the virus and high levels of public awareness, most employees will be understanding of an employer wanting to take measures to protect its workforce. Where it is an option, employees can be asked to work from home for the required duration.
We recommend that employers keep up to date with medical information on the coronavirus and update their approach as guidance changes.
3. What if an employee refuses work travel to a Coronavirus affected area?
The government has issued guidance advising against all travel to Hubei Province and all but essential travel to the rest of mainland China (not including Hong Kong and Macao).
As such, whilst employers may be reluctant to cancel important business engagements, given the government's recommendations, businesses should take suitable steps to ensure that employees are not required to travel to these specifically restricted areas unless such travel is essential. Appropriate alternatives should be considered, such as postponing the trip, conducting the engagement via phone, Skype or video link or relocating to a different meeting venue.
Even in those areas where travel has not yet been advised against but where coronavirus cases have been detected, we recommend that thought is given to whether all the information is available to a business to make any decisions in respect of travel to that area. Where an employee has any underlying condition making them particularly vulnerable were they to contract the coronavirus, an employer should think particularly carefully about any travel requirements placed on the employee.
4. Can an employer require an employee submits to a medical examination?
Employers cannot insist that employees submit to testing for the coronavirus without their consent. To do otherwise could be a serious breach of trust and confidence, which could result in a claim for constructive dismissal (as well as possible liability for criminal assault). In addition, there are legal obligations under UK data protection laws which will be relevant; obtaining medical advice in relation to an employee would constitute processing of their personal data and information about an employee’s health is one of the “special categories of data” under the GDPR and Data Protection Act 2018. The employer would therefore need to have a lawful basis for processing this personal data.
We recommend taking some or all of the following steps:
- Carry out a risk assessment of the risks associated with the coronavirus.
- Ensure that high levels of hygiene are maintained in the workplace through measures such as the provision of hand gel and signage highlighting risks and symptoms.
- Discuss any decisions relating to work travel restrictions with the workforce, explaining why these decisions have been made. Keep employees updated on any change in policy.
- Keep up-to-date on the latest news reports and government advice, in order to monitor the situation and keep alert to any escalations in the virus, which could trigger extended travel restrictions. The World Health Organisation has issued a helpful video along with other guidance for individuals.
- Review any business engagements that are scheduled to take place in any of the highly affected areas and consider what alternative provisions can be put in place.
- Ensure that there are appropriate contingency plans in place for staff absences.
- Utilise all the technology available. Consider alternatives to holding face to face meetings such as video conference and Skype facilities.
If you would like more advice on any of the issues raised in this piece, please do not hesitate to get in touch with a member of our Osborne Clarke employment team.