Coronavirus Update – Mitigations & Misconceptions

Dylan Loughlin

In the last few days, the UK & NI government have both announced measures to assist businesses in mitigating the worst effects of the Coronavirus Crisis.

Once the enabling legislation for these measures is passed, and the details of the commitments become clear, we will update you here on our Coronavirus Blog series, by newsletter and also on Facebook & Twitter.

The different jurisdictions on these islands compounds confusion around the CV19 Crisis so we will also try to dispel some of the Coronavirus Myths surrounding Employment Law obligations.

Here is one regular misconception that we are coming across:

Employees are entitled to a £200 weekly payment if affected by Coronavirus.

This is incorrect for Northern Ireland, but can be claimed in the ROI (€203).

Instead, here are some Mitigation Options you can consider;

  • Use annual leave 
  • Implement home working
  • Consider staff training and retrain staff to work in other job roles
  • Consult with staff if anyone wishes to take unpaid leave for childcare/personal reasons
  • Consider business changes, i.e. offices opening in the evening or weekends (childcare purposes). Can you diversify your services to provide those required during this crisis?

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  • Short Term Working – reduction in overall hours worked*
  • Lay off (£145 one off payment with a 6 week lay-off period with the option to make staff redundant or extend lay-off for a further 6 week period- upon expiration, return to work or redundancy will need to be considered)*
  • Redundancy*

* = there is a procedure to follow, please get in touch with Dylan should you wish to explore these options.  Employers should check any and all insurance policies as you may be covered in relation to employees or profit protection.  Please be assured we are working as hard as we can to protect your best interests, we have MLA contacts who we are lobbying and notifying us of any changes, but as of yet there has been nothing substantial from an NI context. We understand your uncertainty and stress at this time and we will do anything within our means to help. We are experiencing a very high number of calls and emails but Pat and I are acting as quickly as possible. We have cancelled all meetings so that we can be available for you.

Here are some of the FAQ’s that may be of help;

My employee has Coronavirus: Once you have been notified that an employee has Coronavirus, they should receive sick pay in accordance with your internal procedures. The Government has announced that eligible employees who are absent due to Coronavirus will be entitled to statutory sick pay from the first day of absence, rather than the fourth.

Can I recoup SSP? **The Government will meet the cost incurred by employers with fewer than 250 employees of providing statutory sick pay to qualifying persons who are absent due to Coronavirus for up to 14 days.** The exact method of reclaiming the monies has yet to be clarified but please keep all emails and records for these purposes.

Do I need a fitness to work note from the Doctor? In purely legal terms, there is no reason to treat employees with suspected or confirmed Coronavirus differently than you would those with other injuries or illnesses. This means that employees should self-certify for the first week and submit medical certification to cover any period of absence thereafter.

However, given that employees with the virus will be in isolation and cannot attend their GP for certification, you should make reasonable allowances for this. In their official guidance, the Government “strongly suggest that employers use their discretion around the need for medical evidence for a period of absence where an employee is advised to self-isolate due to suspected COVID-19.”

My employee is not sick but cannot work Employees who have been instructed to self-isolate, placed in quarantine or prevented from returning to the UK will obviously be unable to attend work on medical grounds, even if they aren’t actually ill. 

To be eligible for statutory sick pay, an employee must be “incapable” of work, as defined in the Statutory Sick Pay (General) Regulations (Northern Ireland) 1982. The Regulations allow authorised persons to issue a certificate to exclude an employee from work, on the grounds that they are under medical observation in relation to being a carrier of, or having been in contact with, an infectious disease. The Regulations also allow medical practitioners to certify absence “for precautionary or convalescent reasons”. As such, you are advised to pay SSP.

Emergency legislation has been passed which updates the 1982 Regulations to make it expressly clear that an employee undergoing self-isolation due to Coronavirus is incapable for work and will be eligible for statutory sick pay.

This means that an employee who has been given notice that they should self-isolate by a medical practitioner or other authorised person should be treated as on sick leave and will be entitled to statutory sick pay.

I don’t want my employee to come to work

Employees who have been instructed not to attend work by you for whatever reason should receive their usual pay. This includes where you have asked an employee not to attend work because they have recently returned from an affected area.

My employee doesn’t want to attend work Employees may not want to attend work because they are concerned about being infected. As an employer, you have a duty to protect your employees’ health and safety and should listen to their concerns. If the concerns are genuine, you should try and resolve them.

It may be possible to offer home working or arrange a period of annual or unpaid leave. Ultimately, refusing to attend work can be a disciplinary offence, but any eventual dismissal must be within the range of reasonable responses available to you in the circumstances, which could be problematic. You should take specific advice on how to proceed.

My employees has care responsibilities. Employees may request time off to care for an affected dependant, deal with school closures or similar. This will engage their right to time off for a dependant. This leave is unpaid and gives reasonable time off to deal with an emergency or make arrangements for further care. Employees can take holiday or parental leave to cover longer periods. You should consider what’s reasonable in the circumstances.

My employee has underlying conditions. You should take particular care with employees who have underlying medical conditions which might place them at increased risk. You should communicate with them regularly and ensure that they have up to date medical advice.

You must consider your duties as an employer under health and safety legislation and also the Disability Discrimination Act 1995, where applicable. This might include exercising greater discretion around precautionary measures such as home-working or periods of absence.

An employee has tested positive for Coronavirus and is in work.

In this circumstance, you should isolate the employee and contact the Public Health Agency immediately.  If your workplace has to close, employee can work from home (if possible), you can pay SSP for the advised closure period (£94.25 per week) or consider temporary lay-off (£145.00 one off payment).

I want to lay employees off.

Employees on unpaid short-time or lay-off are entitled to guarantee pay (£145.00). Employees on short-time or lay-off can claim that they are redundant after 4 consecutive weeks, or after 6 weeks in a 13 week period. You should monitor these time frames carefully.

GDPR Regulations

Data concerning health is considered as special category personal data under the GDPR. You should consider the enhanced requirements for processing such data. It is likely that you will have to communicate news of confirmed or suspected cases to other employees who might be affected.

You must balance your health and safety and data protection obligations. For example, you may be able to communicate necessary information to your employees without disclosing information which would identify the individual employee who has (or may be) infected.

We hope this blog has been of help to you in navigating the Coronavirus Crisis. We will continue to update this blog as the pandemic develops.

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