Coronavirus update for employers | Emergency legislation impacting the workplace

Following our latest update for employers last week, this weekend saw further measures announced by the government to be introduced in emergency legislation.  It has been confirmed that Chancellor, Rishi Sunak, will address the outbreak in his first budget on Wednesday 11 March 2020.

A bill with 'proportionate measures'

The proposed bill will reportedly include 'proportionate' and 'targeted' measures to deal with a widespread outbreak of Covid-19 and to help businesses and workers 'get through to the other side' of any economic downturn caused by an epidemic.  Proposed emergency reforms which will directly impact the workplace include the following:

• as a temporary measure, statutory sick pay will be made available from day one for those individuals who are self-isolating, instead of day four; and
• measures which will allow people who are 'skilled, experienced or qualified volunteers' to temporarily leave their main jobs and volunteer to care for those affected in the event of a UK epidemic.  The government will consult businesses on measures including protecting an individual's main job for up to four weeks.

In addition, it has been reported that there are plans to give firms extra time to pay tax if staff are unable to work and shoppers stop spending money 'in the normal way'.  There are also proposals to allow court cases to be heard via video links. At present, this appears to be centred on magistrates courts, but it may be that we will see similar proposals impacting on employment tribunal cases.

Earlier last week, the government declared that Covid-19 would be listed as a notifiable disease in England and now also Wales, following on from Scotland and Northern Ireland which have already done so, helping companies recover compensation through their insurance policies due to any impact from the virus. However, whether or not a business is covered will still depend on the terms of the specific insurance policy; many insurers typically exclude SARS (another strain of coronavirus), atypical pneumonia and mutant variations.

'.. go home and self-isolate as if they were sick'

Health Secretary Matt Hancock has previously issued a statement that 'self-isolation on medical advice is considered sickness for employment purposes. That is a very important message for employers and those who can go home and self-isolate as if they were sick, because it is for medical reasons'.  While a number of commentators have questioned whether or not our existing laws in fact allow payment of statutory sick pay (SSP) in such circumstances, the message the government is trying to send is more simple – employees who could potentially have the virus but may be asymptomatic, should be encouraged to stay at home to protect others.  Stopping pay would be a clear disincentive for employees to do this.  With ACAS guidance also stating that SSP is payable where self-isolation is on the advice of NHS 111 or a doctor it is hoped that the emergency legislation will address the legal technicalities and clarify the situation for all. ACAS guidance also encourages employers as good practice to pay contractual sick pay, where this is on offer, in cases of self-isolation. For individuals who are ineligible for SSP, the government has confirmed that there is a range of support in place including Universal Credit and contributory Employment and Support Allowance.

The safest position legally and in practice for encouraging 'self-isolating' workers to stay at home for the 14 day period would be to continue to pay salary as usual and, so far as possible under the employee's employment contract (or where agreement can be reached otherwise), require duties to be performed remotely. Employers who do pay sick pay will need to consider what impact this has on any attendance management policies.

Please contact your usual Osborne Clarke contact for further advice on the latest position on paying your staff who are self-isolating and the options available to you.

Skilled, experienced or qualified volunteers

While, according to the government, around three million people currently volunteer in 'a health, community health and social care setting', not all of these people will also be employed in other roles.  The right for skilled, experienced or qualified individuals to volunteer to support any epidemic could therefore leave businesses unexpectedly short-staffed at a time when they are already facing a critical shortage due to the direct impact of coronavirus on their workforce.  The proposals around video links may well be a nod towards the start of increasing recommendations around social distancing and which employers will need to start addressing now in their strategy to protect business continuity; this should include consideration of the potential need for temporary staff.

Employers should also remember that employees have a right to take reasonable time off to deal with an unexpected event involving a dependent; this specifically includes (amongst other things) helping a dependent who falls ill and dealing with the unexpected disruption of arrangements for the care of the dependent.  Employers should therefore plan for an increase in the number of employees taking dependent leave to care for dependents with coronavirus or those whose usual care arrangements have been disrupted by coronavirus and others self-isolating.

Next steps

We must now wait for more detail on the government's strategy in this week's budget. It is reported that this emergency coronavirus bill could be introduced in the House of Commons this month.  Osborne Clarke is advising nationally and internationally on the impact of Covid-19 across the whole range of business and regulatory issues.  To speak to one of our experts, please speak to usual your Osborne Clarke contact.