Coronavirus: FAQs for Employers

Last updated: 15:30, 6 August 2021

This Q&A looks at frequently asked questions by employers during the pandemic. It is intended as general guidance only and focuses on the law and guidance as it applies in England, unless stated otherwise. If you have a specific query or require advice, please contact us. Freeths can provide employment advice in relation to all four nations of the UK.This is a dynamic situation and the Government guidance for all four nations should be checked regularly:

• For employers in England
• For employers in Wales
• For employers in Scotland
• For employers in Northern Ireland

For information on the Furlough scheme please see:

• Coronavirus Job Retention Scheme for claim periods to 31 October 2020 and
• Extended Coronavirus Job Retention Scheme for claim periods on or after 1 November 2020.

For information on help for the self-employed see: COVID-19: Help for the self-employed

COVID-19 vaccines and the NHS COVID Pass

 

Can employers require their employees to take the COVID-19 vaccine to enter their place of work? 

A number of organisations are considering this approach, especially after the Government passed legislation making it a legal requirement for anyone working in care homes to have received two doses of an approved COVID-19 vaccine. You can read our update on mandating vaccines in care settings here. However, mandating vaccination outside of the health and social care setting is likely to be risky, and could expose the business to claims (for example, unfair dismissal, discrimination and human rights challenges). Rather than implement blanket policies across the entire workforce, which are likely to come up against legal hurdles, employers are advised to carefully consider the requirements of each role and consider alternatives to keep the working environment safe e.g. workplace testing, social distancing, PPE, face coverings, hygiene, cleaning and flexible home working.

Should employers encourage employees to take the COVID-19 vaccine?

 Yes. The Health and Safety at Work Act 1974 requires employers to take reasonable steps to reduce workplace risks. Encouraging employees to be vaccinated to protect themselves, colleagues, clients or customers and others in the workplace is likely to be considered a reasonable step. Employers may wish to consider a programme to educate staff about the vaccine to ensure employees are informed about the pros and cons. In July the Government issued guidance to employers about supporting the vaccination programme together with a COVID-19 vaccination toolkit with materials for employers to use. This includes scripts, assets for email signatures internet banners, social media posts, briefing sheets and vaccine fact sheets. Employers are encouraged to promote vaccination by encouraging senior employees to share their vaccination experiences and ensure policies and procedures do not disincentivise employees from getting the vaccine.

Can employees refused to accept the COVID-19 vaccine?

Yes. Employees may have a range of reasons for refusing the vaccine some of which are protected by the Equality Act 2010. Some employees may have religious or philosophical beliefs for refusing the COVID-19 vaccine; while most religions do not disagree with vaccinations in principle, some religions disagree with any medical intervention. The NHS guidance does make it clear that there are no animal products in the COVID-19 vaccines however some vegans may disagree with vaccinations that have been tested on animals. The advice for pregnant women changed in April and vaccination is now recommended. This is a significant change from previous advice, which was that routine vaccination should not be offered to pregnant women.

Employers should carefully consider whether blanket vaccine policies could adversely affect people with a protected characteristic (e.g. pregnancy, religious and philosophical beliefs). Such policies may be discriminatory and employers should consider whether a mandatory vaccination policy can be objectively justified. Employers should always weigh up individual concerns against their business reasons for mandating the vaccine. It is important that all views are treated with respect to avoid eroding mutual trust and confidence, a term that is implied by law into every employment contract.

Can employers ask staff to demonstrate their COVID status using the NHS COVID Pass?

This would carry significant legal risk, in particular discrimination risks, and would be difficult to objectively justify unless the working environment is particularly high risk.

The NHS Covid Pass is available to those aged over 18 who have received both doses of the Covid-19 vaccine, have tested negative in the previous 48 hours (using either a PCR test or a lateral flow test), or have had a positive PCR test in the previous 6 months and considered to have developed natural immunity. The Government encourages use of the NHS Covid Pass in facilities where people are likely to be in close proximity to a large number of people from other households for a sustained period. The Government is due to mandate the use of the NHS Covid Pass in certain high risk settings by September 2021.

Organisations considering the use of the NHS Covid Pass should note that the Equality Act 2010 provisions detailed above, also apply to the provision of services. Without a legal mandate to do so, organisations should be cautious with regards to imposing the use of the NHS Covid Pass as a blanket policy without considering the specific circumstances of each case.

Can employers keep records about staff vaccination status?

Yes, however employers will need to ensure that they comply with data protection obligations around recording this special category health data. The ICO has released some guidance on vaccination and COVID status checks, highlighting that employers need to identify the legal basis for collecting the data, carry out a data protection impact assessment and respect the principles of transparency, proportionality and security. The guidance makes it clear that recording vaccination status data on a 'just in case' basis will not be sufficient to comply with data protection obligations.

Self-isolation, Social Distancing, and Shielding

When should an employee self-isolate?

• Employees must self-isolate if they:
• Have Coronavirus symptoms;
• Test positive for Coronavirus;
• Live in the same household as someone who has Coronavirus symptoms or has tested positive for Coronavirus;
• Are notified by the NHS or health authority to self-isolate; or
• Have returned from a 'red list' country, or an 'amber list' country and are not fully vaccinated.

Employees who are required to self-isolate, are under a legal duty to stay at home. If employees cannot work from home they will be entitled to Statutory Sick Pay. Employees can be fined a minimum of £1,000 for failing to self-isolate and can also be issued with a £50 fixed penalty notice for failing to tell their employer that they are required to self-isolate. Guidance on what employees should do if they need to self-isolate or cannot attend work due to coronavirus is here

Can employers ask a self-isolating employee to come to work?

No, unless they are exempt (see below). Employers have a legal duty not to knowingly allow self-isolating employees to attend the workplace or work outside their home. Employers can be fined a minimum of £1,000 if they breach this duty. Fines may rise to £10,000 for repeated breaches. If the employee can work from home, the employer should agree to homeworking. If the employee cannot work from home, or they are too unwell to work during self-isolation, the employer has other options including paying eligible employees Statutory Sick Pay (SSP) or agreeing annual leave.

Are there any exemptions from self-isolation?

From 16 August 2021, the Government plans to relax the close contact self-isolation rules, so that fully vaccinated close contacts will be exempt from self-isolation (unless they test positive). The Government intends to work closely with employers on this and is likely to provide further guidance.Until 16 August, the Government has announced the close contact self-isolation exemption for critical workers. For employers operating in one of 16 critical sectors, close contact self-isolation rules can be dis-applied, but only for work purposes, and for traveling to work. The Government has updated its NHS test and trace in the workplace guidance, to explain how employers engaged in 'critical services' can avoid the rules on close contact self-isolation, and allow staff to continue to work. The guidance states that where close contact self-isolation would result in a serious disruption to critical services, employees who are double vaccinated can leave self-isolation to complete that critical work. Permission to leave self-isolation is dependent on daily testing.

Employers need to make an application to the relevant Government department. They need to provide details of certain details of the people who it is proposed would leave self-isolation, the roles those individuals perform and the impact failure to do this would have. Decisions on exemptions are expected to be taken 'rapidly'.

 Should employers tell staff if a colleague is self-isolating?

No. Employers should not name or identify employees who have tested positive as health information is considered a “special category of personal data” under the Data Protection Act. Instead, employers may be able to update staff on numbers of positive cases or self-isolating employees. For more details see Scope and Application of Data Protection law during the pandemic. 

Holidays and quarantine requirements

When do employees need to quarantine?

Employees who fail to quarantine as required after their return to the UK can be fined up to £10,000 and can also be issued with a £50 fixed penalty notice for failing to tell their employer that they are required to self-isolate. Such failure could also entitle an employer to take disciplinary action.

Can employers require employees to tell them their personal travel plans?

Employers will be able to ask employees if they plan to travel internationally, especially as employers have a legal duty not to knowingly allow self-isolating employees to attend the workplace or work outside their home. Employers may wish to consider amending policies to include a requirement for employees to notify their employer if they plan to/ have travelled overseas, provide information about what happens if they need to quarantine on return to the UK and how this absence will be recorded and paid (if working from home is not possible).

Can employers stop employees travelling abroad?

Outside of any national lockdown it will be risky to introduce a total ban on travelling abroad because this is likely to be an unreasonable restriction on an employee's personal life, even if their decision to travel abroad means they can't work on their return. Additionally, there may indirect discrimination risks, for example, the policy may have a greater impact on employees who are foreign nationals, compared to those who are UK citizens.

Is an employee entitled to pay during quarantine?

No, employees who are unable to work from home during the quarantine period are not entitled to any pay or Statutory Sick Pay (SSP). SSP is only payable to eligible employees if they have to self-isolate for another reason during quarantine, for example if they develop Coronavirus symptoms or are notified to self-isolate by the NHS. Employers may wish to inform employees of this before they travel abroad. If the company has an internal policy about pay during quarantine, they should also make the employee aware of this.

Hybrid working

Do all employees have to work from home?

No. The 'work from home if you can' message will no longer apply with the Government advice now being for employers to plan a gradual return to the workplace, unless you live or work in an area where the Delta Covid-19 variant is spreading; in which case the advice remains to work from home. The full list of areas is here.

Can self-isolating employees work from home?

Yes, if the employee is well enough to work during the self-isolation period. If their employment contract doesn't allow homeworking, employers can agree this directly with the employee. If the employee is unable to work during self-isolation, either because they cannot practically work from home or they are too unwell, they are treated as being on sick leave and may be eligible for Statutory Sick Pay (SSP).

Do employers need to carry out a risk assessments for home working and hybrid employees?

Yes. Employer's health and safety responsibilities extend to home workers, including those who are temporarily working from home because of Coronavirus. The Health and Safety Executive guidance on homeworking can be found here. For temporary or short notice homeworking, a full workstation assessment may not be needed. If working from home becomes permanent, employers will be required to carry out full risk assessments and take appropriate measures to reduce any associated risks.

Do employers need a hybrid/home working policy?

Yes, it is a good idea to introduce a Hybrid /Home working policy or guidance for employees. Working from home or hybrid working arrangements will continue after Coronavirus, and a policy helps ensure both employer and employee understand what is required of them during a temporary or permanent period of homeworking. The Freeths employment team can help you draft a policy and deliver training to your people managers about managing a hybrid workforce.

Vulnerable employees

 Who are vulnerable employees?

Individuals who at greater risk from Coronavirus can be separated into two categories:

• Clinically vulnerable: individuals who are aged 70 or over, are pregnant, or are aged under 70 but have certain underlying health conditions (i.e. those who are advised to have a free annual flu jab on medical grounds)
• Clinically extremely vulnerable (CEV): individuals who have certain serious health conditions or have been added to the shielded patients list.[ela_accordion]

 Can CEV employees attend the workplace?

Yes. CEV employees have not been required to shield since 1 April 2021 and are now advised to take steps to minimise the risk of catching/ passing on COVID-19 by considering whether those around them have been vaccinated, continuing to practice social distancing, wearing face coverings and reducing the amount of time spent in settings where it is not possible to maintain social distancing with people outside of their own group. Employers are advised to give extra consideration to CEV employees by exploring their individual needs and supporting them by taking any additional precautions advised by their clinicians.

 Are CEV employees who cannot work from home entitled to pay?

Yes, CEV employees may be eligible to receive furlough pay under the extended Coronavirus Job Retention Scheme until 30 September 2021 or alternatively, may be eligible for SSP.

Pregnant Employees

Will statutory maternity pay (SMP) be affected by furlough payments?

No. As long as the employee starts maternity leave on or after 25 April 2020 SMP calculations should be based on their normal earnings i.e. not the employee's reduced furlough pay. This applies to all other types of parental or adoption leave from this date.

 Will SMP be impacted by SSP paid during self-isolation?

Yes, if the pregnant employee is paid SSP during the relevant period for calculating SMP. As SMP is calculated based on average weekly earnings, and SSP is classed as earnings, this will reduce the pregnant employee's earnings.

 Can a pregnant employee attend the workplace?

All pregnant employees are considered clinically vulnerable to Coronavirus, and some pregnant employees may be clinically extremely vulnerable. Employers should follow the guidance for pregnant employees. If an employee is less than 28 weeks pregnant and has no underlying health conditions, a risk assessment should be carried out with employer and occupational health, and the employee should continue attending work if the risk assessment advises it's safe to do so. If not, the employee should be offered alternative working arrangements or be suspended on normal pay. If an employee is more than 28 weeks pregnant or has an underlying health condition there is an increased risk of becoming severely ill and of pre-term birth if worker contracts COVID-19. This may require working flexibly from home in a different capacity, so employers should consider both how to redeploy these members of staff and how to maximise the potential for homeworking.

What steps should employers take to remove Coronavirus risks for pregnant employees?

Employers are obliged to reduce, remove or control any Coronavirus-related risks identified for pregnant employees if the risk assessment concludes that there are risks present at work. Methods to do so can include:

• Allowing the employee to work from home;
• Making reasonable adjustments to the employee's duties;
• Offering suitable alternative work, where this is available;
• Suspending the employee on full pay for as long as necessary to protect the pregnant employee's, or her child's, health and safety.

To avoid discrimination risks, furlough leave should only be used for pregnant employees where the reason for using this is unrelated to the pregnancy or associated workplace risks (such as a shortage of work due to Coronavirus).

Will Coronavirus-related leave trigger an employee's maternity leave?

No. Coronavirus-related leave, including self-isolation or furlough, will not trigger maternity leave.Maternity leave is only triggered early if the employee is absent from work for a pregnancy-related reason in the four weeks before the expected week of childbirth, e.g. pregnancy-related sickness or a health and safety suspension.

Can an employee shorten their maternity leave to be furloughed?

Yes, but employees returning from maternity leave need to give the statutory eight weeks' notice to end maternity leave early in order to be furloughed. The wording of the guidance suggests that this minimum notice period must be complied with so the employer and employee cannot agree to shorten this 8 week period.

Sick Pay

 Are self-isolating employees entitled to sick pay?

Yes, employees may be eligible to receive Statutory Sick Pay (SSP) if they are self-isolating for the following reasons:

• They or someone in their household (or support bubble) has Coronavirus or Coronavirus symptoms.
• They have been notified to self-isolate by the NHS or public health authorities.

Employees may also be entitled to contractual sick pay. The Extended Coronavirus Job Retention Scheme is not intended for short-term absences so employees will not be eligible to be furloughed for a period of self-isolation.

Do employers need to pay sick pay to employees self-isolating in other circumstances?

No, employees who are not self-isolating for reasons detailed above, including those under quarantine, are not entitled to SSP, however the reasons why the employee is self-isolating should be explored. The employee may be entitled to contractual pay if there is a genuine reason why they are unable to work, such as a health and safety risk. Employers are encouraged to take legal advice in these circumstances.

Is a self-isolating employee entitled to SSP from day one?

Yes, SPP is payable from day one of an employee's absence from work (rather than day four), if the employee is on sick leave or self-isolating due to Coronavirus. Government guidance on when to start paying SSP is available here.

Can employers reclaim Coronavirus-related SSP?

Yes, if the employer had fewer than 250 employees as at 28 February 2020. Under the current guidance, employers can reclaim up to two weeks SSP for eligible employees who are off work for Coronavirus-related reasons. Claims can be submitted online and employers will need to keep specific SSP records for any payments reclaimed for at least 3 years from the end of the tax year SSP was paid.

 Do employees need to give evidence of their sickness?

Yes, once the employee has been off sick for 7 days. For the first 7 days, the employee can self-certify as normal. Rather than receiving a fit note, for Coronavirus-related sick leave the employee could provide an isolation note or notification to self-isolate from the NHS, or a 'shielding note' or letter from their doctor which advises them to self-isolate or shield.

COVID-19 in the workplace

What steps does an employer need to take to keep the workplace safe?

The working safely during Coronavirus guidance has been updated to reflect the move to Step 4. The guidance confirms that social distancing will not need to be implemented in workplaces. The guidance requires businesses operating in various working environments to take six priority actions to protect staff and customers from COVID-19. These are:

• Complete a health and safety risk assessment to include the risk from COVID-19;
• Provide adequate ventilation;
• Clean more often;
• Turn away people with COVID-19 symptoms;
• Enable people to check in at your venue; and
• Communicate with workers, contractors and visitors about safety measures.

The guidance also recommends a number of ways that employers can manage risk and reduce contact between workers. This includes identifying poorly ventilated spaces, using 'fixed teams' or 'cohorts' so that a worker only mixes with a few colleagues, using screens where colleagues are in close proximity, working back-to-back and side-to-side (rather than face-to-face) and encouraging the use of face coverings by workers or customers in enclosed and crowded spaces.

The guidance also recommends sharing details of your organisation's risk assessment with your workforce. It states that risk assessments should ideally be published on company websites, with an expectation that all employers with over 50 workers will do so.

The Government has also issued guidance on ventilation which states that employers are required to provide employees with clear guidance on ventilation, why it is important, and instruction on how to achieve and maintain good natural ventilation or to operate systems if there are user controls.

Do staff or visitors need to wear face coverings in the workplace?

No. Although the emphasis has moved away from legal requirement to personal responsibility, the Government still advises continued use of face coverings in enclosed and crowded spaces where coming into contact with those you don't normally meet. Employers will need to take a view on face coverings and communicate this to all staff. There are a growing number of organisations, retail outlets and transport providers that have already confirmed that face coverings will continue to be required on their premises and facilities.

 Do employers have to close the workplace if someone with Coronavirus has been on the premises?

No, employers do not have to close the workplace but should follow the government guidance on cleaning the workplace in these circumstances. Employers can also reduce the risk of further spread from visitors or employees by ensuring the workplace is COVID secure. 

What can an employer communicate to others about an employee with Coronavirus?

Under the Data Protection Act 2018 information about an employee's health is a “special category of personal data”. So whilst employees must be informed of an infection risk as soon as possible, the name of the individual infected should not be disclosed. It is sufficient to say someone in the workplace has tested positive and that appropriate precautions have been taken. The ICO has indicated it will take a pragmatic approach to enforcement in view of the pandemic. It has said that employers can disclose to colleagues that an employee has contracted Coronavirus providing the employer only discloses as much information as is necessary; it will not usually be necessary to disclose the employee's name. For more details see Scope and Application of Data Protection.

Holidays

 Do workers accrue holiday if off work due to Coronavirus?

Yes, staff on furlough or on Coronavirus-related sick leave continue to accrue holiday as normal. Employers should make sure they are reviewing holiday levels throughout the year and are encouraging staff to take holiday where they can.

 Can employers require workers take holiday during self-isolation?

No. The worker is deemed to be on sick leave (and may be entitled to SSP) so the employer cannot require them to take annual leave. The worker can request to take holiday during the self-isolation period, and if agreed, the worker should receive their usual rate of pay.

Can employers require workers take holiday during furlough?

Workers can request to take holiday during any furlough period, and if agreed, the worker should receive their usual rate of pay, not their lower furlough pay. Many employers will find that employees have accrued a lot of annual leave over the lockdown periods. For operational reasons, employers may consider it necessary to require employees to take some of their accrued annual leave by giving the minimum statutory notice.

Can a worker carry over annual leave not used because of Coronavirus?

Last year, the Government introduced legislation to allow employees to carry over annual leave where it was not 'reasonably practicable' for the worker to take some or all of their leave due to the effects of coronavirus. In these circumstances, a worker can carry forward up to four weeks of their untaken leave. Any leave that is carried forward to be used within the two subsequent leave years. The intention was to prevent critical workers who weren't able to take holiday e.g. NHS staff or those working in food supply chains from losing their leave. But in reality many employees working across many sectors haven't taken much holiday, because of a lack of good things to do and fear of wasting the time. This has resulted in employees carrying over a lot of leave! Where it is reasonably practicable for the worker to take their leave, an employer will be able to refuse a request for leave to be carried forward.

Can Coronavirus Job Retention Scheme grants be used to pay holiday?

Yes, although employees should not be placed on furlough simply because they are taking holiday for that period. Holidays should be paid at the employee's normal rate of pay, so an employer must pay additional amounts over the grant. If an employee is flexibly furloughed then any hours taken as holiday during the claim period should be counted as furloughed hours rather than working hours.

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Freeths' Employment team have extensive experience of working with employers to manage their workforce, and can help you answer the questions you will no doubt be asking in the wake of Coronavirus.

If you would like to talk through the consequences for your business, please email us and one of our team will get in touch.