Managing a workforce in the new COVID-19 era

The government has introduced two new measures in response to the COVID-19 pandemic that may have a significant impact on working life: the NHS’ Test & Trace system and the new quarantine rules for travellers entering the UK. Hannah Ford and Sarah Taylor of Stevens & Bolton LLP discuss the potential impact of both of these measures.

The article

This article was first published on the Stevens & Bolton LLP website on 12 June 2020.

NHS Test & Trace—how it works

The NHS Test & Trace system and associated guidance applies in England only. There are different tracing systems and guidance for the four devolved nations of the UK.

Anyone exhibiting symptoms of coronavirus is required to self-isolate for seven days from the onset of symptoms (and anyone in their household is required to self-isolate for 14 days). Symptomatic individuals are now able to request a test for COVID-19. While they await the result of their test, they and their households must continue to self-isolate. The NHS aims to provide results within 48 hours of taking a test, but some results may take longer. If the test result is positive, the NHS’ Test & Trace service will contact the individual and request details of people with whom the individual has had recent, close contact, and also a list of places the individual has visited. If the test result is negative, the individual and their household no longer needs to self-isolate.

There is no guarantee that an individual who requests a COVID-19 test will be tested. The NHS website says, ‘There is very high demand for tests at the moment. People in hospital and essential workers, including NHS and social care staff, are getting priority. Even if you are successful in requesting a test, we cannot guarantee you will get one. It depends on how many tests are available each day in different parts of the country.’ For the test to be effective, it is also critical that the individual is tested within the first five days of the onset of symptoms. If this window is missed, or the individual is unable to obtain a test, they must continue to self-isolate for the full seven-day period (and their households for the full 14-day period).

If an individual has been in recent, close contact with an individual who has tested positive for COVID-19, they may be contacted by the NHS’ Test & Trace system and instructed to self-isolate for 14 days, even if they present no symptoms and are feeling well. Individuals are not able to request a COVID-19 test unless they exhibit symptoms. Even those individuals who receive a negative test result are still required to self-isolate for the full 14-day period, because they may have the virus, but it cannot yet be detected by a test (ie a ‘false negative’ test result).

What this means for employers

High levels of unexpected absence

As employers begin to take tentative steps to re-open workplaces and welcome back staff who have been furloughed or working permanently from home since the outbreak of the pandemic, they will need to prepare for any number of employees to be absent from the workplace with little or no notice for up to 14 days at a time. Those employees who cannot work from home will be unable to work until their period of self-isolation comes to an end. Working parents of young children who require constant care and supervision may not be able to work, even from home, if their child is advised to self-isolate and is unable to attend their school or nursery. Employers will need to put continuity plans in place to prepare for higher volumes of unexpected absence and also for employees to be able to work from home at very short notice, where working from home is an option. It should be noted, however, that existing guidance that all employees should be working from home wherever possible remains in place.

Potentially higher levels of enhanced sick pay

Those employees who are instructed to self-isolate and cannot work from home are entitled to receive statutory sick pay (SSP), currently £95.85 per week, providing they meet the other eligibility criteria. Employers who had fewer than 250 employees on 28 February 2020 are able to reclaim up to two weeks’ SSP per employee. Whether individuals are entitled to enhanced sick pay while self-isolating will depend on the wording of their employment contracts, although it will be unusual for an employment contract to cover this rather unique situation.

Given that SSP is likely to be significantly lower than many employees’ normal pay, the government advises giving individuals the option of taking paid annual leave instead, in order to maintain their income. This option may not, however, be available to employees who have already used up their annual leave entitlement for the year, or who need to take annual leave at a different time. The risk is that employees will refuse to comply with NHS advice to self-isolate if their pay is significantly impacted. This will consequently risk an outbreak of COVID-19 at the workplace, resulting in an even higher level of absence. In view of this, employers may choose to offer enhanced sick pay to those advised to self-isolate in accordance with the NHS’ Test & Trace system, in order to mitigate the risk of an outbreak at their workplace. However, given the current economic climate, many employers simply will not have the resources to continue to pay absent workers at their normal rate of pay. Employers may also want to consider implementing policies requiring employees to comply with any medical advice to self-isolate, although policing such a policy would be difficult.

Those individuals who are unable to work because they need to care for young children who are advised to self-isolate will not qualify for SSP and will need to take unpaid leave unless their employer is willing to offer discretionary pay in the circumstances.

Difficulties in managing excessive absences

Employers may find that certain employees are being advised to self-isolate more frequently than others as a result of their lifestyle, possibly indicating that they are not complying with government guidance on social distancing. Employers should consider updating their policies relating to frequent absences in order to address these particular circumstances. The action that an employer is entitled to take will, however, be limited, as employers are in the main unable to control what their employees do outside of their working hours. An employer will also want to avoid inadvertently encouraging an individual to attend work despite receiving advice to self-isolate, if that individual fears disciplinary action as a result of further absence.

Dilemmas about how to protect a workforce against potential risks

Another dilemma facing employers is what action to take, if any, if a member of staff informs them that they have COVID-19 symptoms and are awaiting a test, or have been tested and are awaiting the test result (or, even, have tested negative but suspect this is a ‘false negative’ result). Government guidance only requires individuals to self-isolate if they have been in recent, close contact with an individual who has tested positive for coronavirus. However, persons who have been in close, recent contact with someone suspected of having COVID-19 are, nevertheless, advised to ‘avoid individuals who are at high risk of contracting COVID-19, for example, because they have pre-existing medical conditions, such as respiratory issues’.

An employer who is keen to limit risk in the workplace may want to consider which members of staff have been in recent, close contact with the member of staff exhibiting symptoms and instruct those individuals not to attend the workplace until the risk has passed, especially if there are clinically vulnerably members of staff with whom such individuals may come into contact. Given that all employers have a duty to take reasonable care of the health and safety of their employees, arguably those employers who become aware of a potential risk of COVID-19 infection have a duty to take action to limit the risk of other members of staff being infected. In such circumstances, if the employer decides to instruct members of staff to remain at home, the employer will need to pay those individuals their normal pay, regardless of whether they are able to work from home or not. Again, this course of action is unlikely to be palatable to employers whose businesses are struggling to survive in the current climate.

New quarantine rules for travellers

Anyone now entering the UK will need to self-isolate for 14 days. This does not apply to individuals entering the UK from the Common Travel Area (comprising the UK, the Republic of Ireland, the Channel Islands and the Isle of Man), unless they arrived into the Common Travel Area within the previous 14 days.

There is also an extensive list of persons exempt from quarantine, which includes:

people who live in the UK but work in another country and travel between the UK and country of work at least once a week
people who live outside the UK but work in the UK and travel between their country of residence and the UK at least once a week
drivers of goods vehicles or public service vehicles, and
seasonal agricultural workers who have an offer of employment for seasonal work (providing they self-isolate on the farm for 14 days and follow separate guidance)

It is currently unclear whether an employee is entitled to SSP during any period of quarantine.

What this means for employers

Currently, the Foreign and Commonwealth Office advises against all but essential travel. However, once current restrictions are relaxed, we are likely to see an increase in employees wanting to travel overseas for holidays and to visit family.

For employees who are unable to work from home, a period of quarantine will extend any period of absence by an additional 14 days. It is unlikely that employers will be able to prevent employees from travelling overseas during their annual leave, however, an employer may be entitled to require such annual leave to be postponed until a later date when it is practicable for the individual to take an extended period of absence. The recent change in rules allowing for annual leave to be carried over for two years will assist employers who are seeking to postpone annual leave. For further guidance, see Practice Note: Coronavirus (COVID-19)—holiday and holiday pay.

Employers should also be alive to the risk of discrimination if the employer’s policies regarding the taking of annual leave have a disproportionate impact on certain groups of employees who wish to use their annual leave to travel abroad to visit family.

In view of the legal and employee relations issues that are likely to arise from the new quarantine rules, employers should already be giving careful consideration to how to deal with these issues and to implementing a policy to address these issues in advance. Consistency in approach will be critical to avoiding claims of unfairness and discrimination.

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