The coronavirus outbreak throws up numerous employment law issues, including questions about travel, health and safety concerns and discrimination claim risks. From staff who refuse to attend work despite being well, to those who refuse to stay home when sick, what do employers need to know?
About the coronavirus
A virus causing severe lung disease that started in China has spread to other countries, including the UK. The coronavirus had infected 70,620 people in China as of 16 February, with 1,770 of them dying.
What are the symptoms?
It seems to start with a fever, followed by a dry cough.
After a week, it leads to shortness of breath and some patients require hospital treatment. Notably, the infection rarely seems to cause a runny nose or sneezing.
The incubation period – between infection and showing any symptoms – lasts up to 14 days, according to the World Health Organization (WHO).
But some researchers say it may be as long as 24 days.
And Chinese scientists say some people may be infectious even before their symptoms appear.
How deadly is the coronavirus?
Based on data from 44,000 patients with this coronavirus, the WHO says:
- 81% develop mild symptoms
- 14% develop severe symptoms
- 5% become critically ill
The proportion dying from the disease, appears low (between 1% and 2%) – but the figures are unreliable.
Thousands are still being treated but may go on to die – so the death rate could be higher.
But it is also unclear how many mild cases remain unreported – so the death rate could also be lower.
To put this it into context, about one billion people catch influenza every year, with between 290,000 and 650,000 deaths. The severity of flu changes every year.
Can coronavirus be treated or cured?
Right now, treatment relies on the basics – keeping the patient’s body going, including breathing support, until their immune system can fight off the virus.
However, the work to develop a vaccine is under way and it is hoped there will be human trials before the end of the year.
Hospitals are also testing anti-viral drugs to see if they have an impact.
Health and safety
Employers have a duty to take steps that are reasonably necessary to ensure the health, safety and welfare of all their employees, including those who are particularly at risk for any reason. Employees also have a duty to take reasonable care of their own health and safety and that of people they work with. They must cooperate with their employer to enable it to comply with its duties under health and safety legislation. Employees who refuse to cooperate, or who recklessly risk their own health or that of colleagues or customers, could be disciplined.
Employers should take simple precautions to protect their staff’s health and safety: · Limit work trips to China. The UK government advises against all travel to Hubei Province during the coronavirus outbreak. It advises against all but essential travel to the rest of mainland China (not including Hong Kong and Macao). Use telephone or videoconferencing where possible instead.
- Educate staff without causing panic. For example, send emails or display posters outlining the current situation and any government advice.
- Provide tissues and hand-sanitiser and encourage their regular use. In particular, encourage staff to wash their hands or use hand-sanitiser on arriving in the building after using public transport and after coughing or sneezing.
- Consider displaying posters on “cough etiquette”, hand and respiratory hygiene and safe food practices.
- Regularly clean frequently-touched communal areas, including door handles, kitchens, toilets, showers, and hot desk keyboards, phones and desks.
- Ensure that anyone with coronavirus symptoms (cough, sore throat, fever, breathing difficulties, chest pain) does not come into work. If they have recently travelled back from China or have had contact with someone who has (or with someone infected with the virus), they should see a doctor and get a diagnosis. They should not return to work until all symptoms have gone.
- Keep the situation and government guidance review. If the situation worsens, employers may have to take additional measures such as minimising all work-related travel.
- Consider allowing high-risk individuals to work from home, particularly if there coronavirus cases are confirmed near the workplace.
Although there remains some uncertainty, those at most risk of becoming seriously ill if they catch the coronavirus appear to include older people, pregnant women and those with pre-existing medical conditions such as diabetes, heart disease and respiratory or immune problems.
There is currently a low risk of infection for individuals in the UK, but employers should keep the situation under review. If the outbreak worsens and more cases occur in the UK, you should carry out a risk assessment to gauge whether the working environment of high-risk individuals presents a risk of infection (e.g. because they will be exposed to individuals who are infected with the virus).
There is currently no vaccine for the coronavirus (unlike flu), so those at high risk cannot protect themselves. Where necessary, precautions should be taken such as moving particular employees to a different location or asking them to work from home. Consult with the individual before taking any action.
Employers have specific statutory obligations to take steps to avoid risks to which pregnant employees are exposed as a result of their work. Where it is not possible to avoid such risks by other means, pregnant employees must be offered suitable alternative employment on a temporary basis or suspended from work on medical grounds (on full pay) for as long as necessary. If the period of suspension continues into the fourth week before the expected week of childbirth, or the employee is ill after the start of the fourth week, this will trigger the commencement of maternity leave.
What about sick pay?
Any entitlement to company sick pay will be governed by the contract of employment. Contractual sick pay normally includes any entitlement to statutory sick pay. Employees without any contractual sick pay may be entitled to statutory sick pay if they meet the conditions. If employees are not entitled to full sick pay, you may want to consider paying it on a discretionary basis if staff would otherwise try to return to work while still sick.
Employees who are not sick but are being requested to remain away from work because they have just returned from China may be able to work from home and, if so, should be paid as normal. Even if they cannot work from home, they should be paid their normal salary if they are well enough to work but are being requested not to attend.
Employees refusing to attend work
What is the position if the employer thinks it is safe to attend work but an employee is reluctant to do so because of fears of infection?
Employers should assess the risk regularly, consulting government websites for updates. They should also consider their staffing requirements and how many people they need in the workplace. It may be possible to allow employees who wish to do so to work from home or to take holiday.
Employers should, however, be mindful that they might need to require individuals to attend if other people fall sick and there is insufficient cover. If you do permit remote working or holiday, you should reserve the right to require workplace attendance on short notice, making it clear that disciplinary action could be taken if a refusal to attend work is unreasonable.
Before any disciplinary action is commenced, the situation should be discussed with the individual, because it may be possible to allay their concerns in some way. For example, if their real fear is the risk of infection on public transport, it might be possible to adjust their hours to enable them to travel outside rush hour.
If the individual refusing to come into work is pregnant or otherwise at high risk, you should tread carefully and may have to be more flexible. If someone has genuine fears about attending work, the stress of being required to do so or alternatively face disciplinary action may itself adversely affect their health.
Refusing to allow employees to stay at home, or disciplining them for not attending work, could potentially lead to legal claims. For example, an employee might try to claim constructive unfair dismissal if there is a genuine health and safety risk from being required to attend work. However, provided employers do not act unreasonably and employees are not placed at undue risk, such claims would be unlikely to succeed.
Uncertainty remains about the exact characteristics of 2019-nCoV and its transmission. Official recommendations may change as experts learn more about the virus and the nature of the outbreak. Other employment issues may arise if the outbreak spreads widely in the UK, such as staff needing to take time off to care for dependents. Employers should keep the situation under review and stay alert for further government guidance.