Employment lawyers offer advice for coronavirus restrictions

Be flexible and balance health and safety considerations against the need for business continuity, employment lawyers are advising employers facing issues arising from the coronavirus outbreak.

Emma Reid, a director at Ergo Law, commends ACAS for being quick off the mark to provide guidance for employers and employees. While if an employee catches coronavirus, this will be treated in the same way as any other sickness absence, the situation is more complicated where an employee is not actually sick but has either been advised or has decided to self-isolate.

"ACAS advises that an employer is under no legal obligation to pay someone who is not sick but who is either self-isolating or has had quarantine imposed", she notes. "However, it is good practice to treat such absence as sick leave and follow the organisation’s usual sick leave policy. Alternatively, an employer could offer to allow such employees to take the time as paid annual leave. There is obviously also a benefit to the employer in avoiding having potentially infectious employees attend work and spread the virus amongst the workforce."

Similarly, Chris Phillips of Thorntons advises that the consequences of potentially-infected staff coming into work far outweigh any concerns about pay.

He says: "The responsible thing to do is to pay staff if having identified a possible risk of infection, it makes sense for them to remain at home for a period even if they seem well. The potential consequences of not doing so are far worse if a highly contagious condition like coronavirus then spreads throughout the workforce through a worker who cannot afford to stay away if they aren’t paid. 

"Of course, if staff can work from home then this makes sense as they can remain both quarantined and productive. But that isn’t going to work for everyone." 

Mr Phillips adds: "If an employer instructs staff not to attend work for whatever reason, then they should normally continue to pay wages if they are otherwise willing and able to attend work. If you choose to follow Government advice having been in a risk area, you should talk to your employer and agree a sensible plan of action. If everyone acts responsibly, this situation should remain contained and will not have a significant impact for most employers."

In the event of a temporary workplace closure, ACAS suggests that employees would need to be paid as usual. "The law in this area is not completely clear, but case law suggests that employees may have a right to be paid in certain circumstances where they are ready and willing to work but prevented from doing so by external events, such as in the case of quarantine or business closure", Ms Reid notes.

Her co-director Cathy Donald states that meantime, "In practical terms, employers should ensure that staff contact and emergency details are up to date and should also implement NHS advice encouraging staff to wash hands frequently and consider providing hand sanitisers and masks in the workplace, if not already in place.

"Situations like these bring to the fore the merits of flexible working in terms of carrying on business as usual, limiting travel and restricting the spread of the virus in the workplace."

In a blog on his firm's website, Andrew Maxwell of Harper Macleod also recommends that employers review their policies and procedures, and advises them to obtain information about employees' business and personal travel plans (or recent travel), to assess whether action may need to be taken due to possible exposure to the virus.