The IAAF’s legal helpline provider, Lawgistics, has produced the following advice for employers with regard to the Coronavirus.
Over the coming months Lawgistics will be issuing legal updates specifically focusing on the coronavirus situation, in order to answer the most frequently asked questions and to provide employers with guidance on managing their workforce during this difficult time.
This update addresses the immediate questions raised from the PM’s public announcement on Monday 16th March.
If any IAAF member has any questions related to the coronavirus which you would like to be answered in future updates, please email [email protected]
My employee has gone into self-isolation. What sick pay is due?
Any employee going into self-isolation as a precautionary measure against coronavirus infection will be eligible to receive SSP, provided all other usual conditions are satisfied. SSP is payable to the employee “isolating himself from other people in such a manner as to prevent infection or contamination with coronavirus disease, in accordance with guidance published by Public Health England, NHS National Services Scotland or Public Health Wales and effective on 12th March 2020; and by reason of that isolation is unable to work.” This change has come into force on 13 March 2020 and is temporary expiring in 8 months.
Employees do not to have a confirmed case of coronavirus, neither will they likely be tested for it.
Public Health England currently advises anyone with new continuous cough and/or high temperature, however mild, to self-isolate for a period of 7 days. No sick notes and no individual direction from a health professional to self-isolate are necessary.
The Prime Minister announced on 16 March 2020 that anyone who has been in contact with someone who experiences the symptoms of the coronavirus infection will be asked to self-isolate for 14 days, so that the entire household will need to stay self-isolated for this period.
Public Health England also advises that people who have returned from Hubei Province, including Wuhan, Iran, Daegu or Cheongdo in the Republic of Korea, and any area within Italy under containment measures in the last 14 days should avoid attending work. They should call NHS 111 for advice and stay at home.
Finally, the Government suggests that those who have had close contact with a confirmed case of coronavirus will be asked to stay at home for 14 days from the last time they had contact with the confirmed case and follow the home isolation advice sheet.
It would be enough for the employee to fall into any of the above categories to be deemed incapacitated for SSP purposes.
The abolition of the waiting days, so that SSP is payable from day one of self-isolation, was announced in the budget but no changes to the relevant regulations have yet been made. It was also announced that small and medium sized businesses employing fewer than 250 employees as of 28 February 2020 will be reimbursed SSP paid for the first 14 days of sickness as a result of coronavirus.
The SSP rate is currently £94.25 each week rising to £95.85 from 6 April 2020.
Remember that the first 7 days of incapacity are self-certified. The Government has also indicated that requirements for sick notes will be relaxed but no specific regulations have yet been made.
Employees affected by coronavirus may have contractual entitlement to sick pay on top of the SSP. This matter is regulated by the provisions in the employment contract. You may also have a sick pay policy in place regulating the extra pay. Nothing will prevent you from making one-off, ex gratia payments to staff as long these extra payments are not discriminatory or arbitrary in nature.
If you want to introduce sick pay in addition to SSP, it is advisable to do so as variation to the employment contract signed by your employee, especially if you want to stipulate any conditions when you may be entitled to claw the sick pay back, for example if your employee leaves your employ within a certain period of time.
If you wish to make some extra payments to help your staff cope, but on the condition that the sums advanced will be then paid back in the course of employment, then it is really a loan and should be offered as a loan, and should comply with the applicable FCA requirements.
Can I make my employee go home and stay in? What pay is due then?
If your employee falls into one of the categories for self-isolation mentioned above, your employee is deemed as incapacitated and unfit for work. You should insist that the employee follows the official guidance and goes into self-isolation. The SSP and any additional sick pay will be due.
If your employee is not in a category where self-isolation is advised, not ill and you prefer your employee to stay away from work as a purely precautionary measure, then the employee may be suspended on full pay. As an extreme rarity, the employment contract may stipulate a specific obligation of the employer to provide work, in which case the employer cannot require the employee to stay at home. In some, but rare, cases the contract will provide a right for the employer to suspend without pay.
What if my employee refuses to come to work anxious about becoming infected?
There is no general entitlement not to come to work for someone who is not ill and is not deemed to be incapacitated as above but does not want to come to work for fear of being exposed to the coronavirus.
There is no advice at present to shut down workplaces, even after a contact with a confirmed coronavirus case.
Having said that, the employer has a duty of care towards its employees to protect their health and well-being. This includes following the current advice on protecting the workplace against the coronavirus infection.
The employer, for example, will be expected to make available facilities for the staff to wash hands regularly, to sanitise work surfaces, to insist that members of staff showing the symptoms of coronavirus go into self-isolation as stated above. The Government is not currently of the view that face masks should be worn by healthy individuals as protection.
It may be helpful to have a consultation meeting with the employee concerned about catching the infection at work to allay the anxiety and perhaps to offer some adjustments. The Government has announced that working from home should be considered where possible. Flexible working should also be considered. Changes of start and finish times may be helpful so that the staff do not have to travel to work at peak times.
A specific situation will arise if someone has a chronic anxiety disorder, which is aggravated by the coronavirus epidemic. The chronic mental health condition is likely to be classed as a disability, and allowing the employee to take some time off or to implement, or at the very least consider and consult with the employee about, any adjustments which may be helpful in reducing the anxiety is the employer’s duty.
If your employee does not have any anxiety-related disability, and refuses to come to work acting unreasonably, this should be dealt with as unauthorised absence and disciplinary matter.
What about childcare arrangements? Do I have to allow my employees to stay at home and look after their children if they fall ill?
Currently there is no specific provision in place to address the need to take time off to look after a child if the childcare is disrupted or suddenly becomes necessary, for example, when a school is closed due to a coronavirus contact.
The Prime Minister announced on 16 March 2020, that anyone in contact with someone experiencing the symptoms of the coronavirus infection, including children, will be required to self-isolate for 14 days. This has not yet been published as the official advice but when it is published it is expected that the parents and family members in contact with a child showing the coronavirus infection symptoms will be deemed as incapacitated for 14 days and so entitled to the SSP.
The general statutory entitlement to take time off unpaid to look after children and other dependants remains in place. Your employee is entitled to take reasonable time off to provide assistance if a dependant falls ill, to make care arrangements for the provision of care for a dependant who is ill, to deal with the unexpected disruption, termination or breakdown of arrangements for the care of a dependant, and specifically to deal with an unexpected incident which involves the employee’s child during school (or another educational establishment’s) hours. The assistance to the dependant cannot go beyond the reasonable amount necessary to enable the employee to deal with the immediate crisis. However, the coronavirus epidemic is an unprecedented event, and arguably unexpected, and the employers should exercise discretion as to the length of the time off allowed. The statutory provision certainly does not cover looking after a child until the worst of the epidemic is over, but in a crisis situation when the school is suddenly in quarantine, allowing an employee a week off or so to look after the child and to make arrangements for the childcare would appear reasonable.
Use of annual leave, parental leave if your employee is entitled, working from home and flexible working should all be considered to accommodate the childcare requirements.
To view the government guidance on self-isolating, please CLICK HERE.