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4 February, 2020
Overview
The spread of the Wuhan coronavirus gives rise to the same issues globally for employers. These include assessing the risks faced by their staff whilst at work, and developing measures to control those risks; complying with local laws and guidance; identifying how much flexibility they have to adapt their working arrangements to ensure business continuity; and special measures to protect vulnerable employees.
Whilst the issues are the same globally, the solutions will vary from country to country, depending on local circumstances and guidance.
Employers should regularly monitor the situation, taking guidance from governments in their locations and from international bodies such as the World Health Organization.
Employers with works councils or unions will need to consider the extent to which they consult and/or agree with employee representatives about their contingency plans.
Employers may also be subject to local laws requiring them to implement special measures or to notify public health bodies if any of their employees are suspected to be ill.
Employers’ duty of care to staff
Employers should consider whether their existing arrangements for protecting staff and visitors from harm take account of the risk of harm arising from the coronavirus. This may entail conducting a risk assessment to identify the likelihood of staff contracting the coronavirus whilst at work and appropriate measures to control that risk.
The scope of the risk assessment should take account of the nature of the employer’s business and the work which its employees undertake, together with prevailing government guidance.
Special measures may be appropriate for dealing with vulnerable staff such as those with impaired immunity; who are pregnant; who have a public facing role; or who are on secondment or working away from home, especially if they are working abroad.
Having undertaken this assessment the employer should consider implementing a proportionate response, which may need to be reviewed regularly if the outbreak continues to spread, or new government guidance is issued.
This includes reviewing workplace policies such as those governing health reporting; office and personal hygiene; social distancing and the use of protective equipment.
For example, measures could include: suspending non-essential travel; spreading teams across several locations, to improve operational resilience; and the provision of hand sanitisers for staff and masks for frontline staff. Other measures could include requiring employees to report any symptoms or requiring employees returning from a high risk area to remain at home for a period of time.
Employers will need to consider training managers on these arrangements, implementing measures to ensure that staff are given up to date advice and guidance and providing appropriate support for vulnerable staff.
Flexibility
Employers may need to adapt their working arrangements to improve operational resilience in case of staff absences or changes in demand for their products or services. First steps may include assessing the employer’s rights to require staff to work flexibly, perhaps redeploying them to different locations or asking them to perform different duties.
This may entail auditing staff contracts and workplace policies to identify the degree to which workers can be required to work flexibly by changing location or undertaking new duties (for example to cover for an absent colleague). Any changes to working arrangements may require a prior risk assessment together with support and adequate training. Other measures might include asking (or if entitled to do so, requiring) staff to work overtime or to work remotely.
If staff are reluctant to work more flexibly the employer may need to consider whether it can require them to do so by imposing changes to their working arrangements. Local laws may require consultation before change is imposed, and a failure to consult may result in legal claims.
Staff may also seek additional flexibility from their employer if they have difficulty attending work, for example because they are caring for dependants, or schools are shut or transport is disrupted. In those circumstances employers may owe contractual or statutory duties to accommodate staff requests for time off work, or flexible working, perhaps from home or another location.
In these situations employers need to respond in a proportionate, reasonable and consistent manner, otherwise they may risk claims for discrimination or unfair treatment. Accordingly employers need to plan ahead to identify where problems may arise and how they should respond, so that they can behave (and can be seen to be behaving) reasonably and consistently. A failure to do so will not only risk legal claims, it may also impact adversely on staff morale and so damage future employee relations.
For example, an employer’s business may be particularly dependant on a small number of staff performing a discrete and skilled function. The employer may wish to plan new working arrangements to increase the operational resilience of this group and its ability to cope if any of the group’s members were absent by splitting their shifts or requiring some of them to work from another location.
Pay
Employers will need to consider how they will respond to a range of situations including those where staff are willing but unable to work, because they are quarantined or unable to travel; or they are able but unwilling to work because they are concerned about the risks of travelling or being in the workplace.
In the latter case the employer’s ability to take action may depend on the extent to which it has implemented measures to address the risks posed by the coronavirus, otherwise staff may have grounds for refusing to work normally.
Again, the key point is the need for employers to behave proportionately, reasonably and consistently. In some cases local laws or government guidance might indicate when it is appropriate to continue paying staff who are absent, for example if they are quarantined.
For staff who are unwell, their contract or local laws will usually define their entitlement to sick pay. If this is dependent on standard medical certification for absence, employers may need to anticipate how to respond if staff encounter difficulties obtaining medical certificates in the usual way.
Travel
Contingency planning may increase, rather than reduce, the need for staff to travel. Again, employers should audit their staff contracts to ensure they can require staff to travel and then ensure that they follow government guidance and provide appropriate support for staff who travel.
In particular employers should review how best to protect staff travelling on business, especially if they are travelling abroad, when tailored guidance and support may be appropriate. Further considerations include whether measures are in place to deal with staff being quarantined or falling ill when abroad. Can they be easily repatriated, or moved to a safer place? How will the employer’s travel insurance and employee liability insurance policies respond in those situations?
Employers may wish to review whether travel is necessary, and whether, for example, meetings can be conducted by video link; and how they will respond if staff refuse to travel. Again, the key is to be proportionate, reasonable and consistent, which entails anticipating potential scenarios; devising legally robust and fair principles for dealing with them; and ensuring that managers are trained on those principles.
Conclusion
Employers should keep abreast of government guidance and adapt their plans accordingly. The key is to plan ahead and to show leadership, thereby enabling employers to be well prepared to support their staff and to maximise the resilience of their business.
Our extensive global footprint means that we are well placed to help employers to plan effectively should they wish to implement a risk assessment, adapt their working arrangements and undertake contingency planning.
Jennifer Van Dale, Partner, Eversheds Sutherland
jennifervandale@eversheds-sutherland.com
