28 minutes | March.10.2020
Whilst the UK population stockpiles toilet paper which is perhaps an insight too far into the British psyche, according to Public Health England three hundred and seventy three people in the UK have tested positive for coronavirus. Six patients who tested positive for COVID-19 have died. All six victims had underlying health conditions. The latest victim is thought to have acquired the virus in the UK. In the absence of effective drugs or a vaccine, control of this disease relies on the prompt identification, appropriate risk assessment, management and isolation of possible cases, and the investigation and follow up of close contacts to minimise potential onward transmission. The Public Health England definition of close contact is being within two metres of the infected person for 15 minutes.
The UK remains in the "Contain" phase of its response to the coronavirus. The government has said it accepted that the virus "is going to spread in a significant way", however measures to delay the virus's spread with "social distancing" measures will not be introduced yet. The government has previously said "social distancing" measures to slow the spread of the virus could include a ban on sporting events and other large gatherings and encouraging people to work from home rather than use crowded trains and buses. Such a step would require agreement from Chief Medical Officer, Professor Chris Whitty and Chief Scientific Adviser, Sir Patrick Vallance.
According to some reports the coronavirus currently has a 3.4% mortality rate which is lower than the outbreak of SARS (10%). One has to be mindful of the data, however, as there will be issues of underreporting of cases where the infected are not tested for the virus. Further, the statistic takes a global approach and covers all demographics meaning it data will be different depending on location and local demographics. It is important that employers have a clear strategy in place to ensure a safe working environment. Whilst the UK Chief Medical Officers have raised the risk to the public from low to moderate, Public Health England do not think the risk to individuals in the UK has changed at this stage, but that government should plan for all eventualities. The government anticipates that up to a fifth of the workforce may be off sick during the peak of a coronavirus epidemic in the UK. As such, it is advisable for companies to have an internal taskforce to think ahead and make contingency plans. HR and managers need to keep up to date on any developments and in particular in relation to remote working, self-isolation and sickness absence and pay.
Traveling to China or Italy or parts of South Korea
The Foreign and Commonwealth Office (FCO) advise against all travel to Hubei Province and all but essential travel to the rest of mainland China (not including Hong Kong and Macao). Additionally, the FCO is advising against all but essential travel to Italy. The FCO is also advising against all travel to cities of Daegu, Cheongdo and Gyeongsan in South Korea.
It is therefore advisable for employers to cease work trips to China and Italy for the moment. Where possible, employees should use videoconferencing or teleconferencing as appropriate.
Employees who are sick
In a statement to the House of Commons on 4 March 2020, Prime Minister Boris Johnson said that the emergency measures were being introduced to change the rules of statutory sick pay so that this would be available from day one of absence for sickness, rather than after the first three qualifying days of any absence at present. He also stated that SSP would be available to those who are symptom free but unable to attend work because they have been asked to self-isolate. It is likely that such individuals would be eligible for SSP by reason of deemed incapacity even under current legislation, provided they have been issued with a written notice by a medical authority advising them to self-isolate. This was confirmed by Acas guidance which was updated following the government's announcement.
SSP is paid by the employer and it cannot be claimed back from the government (unlike statutory maternity pay, for example), so this is potentially an additional cost for businesses at what is already a difficult time. In addition, SPP is due to increase from £94.25 per week to £95.85 on 6 April 2020.
The government has also advised employers that they should use their discretion when requiring employees to provide fit notes from their GP which are usually required after 7 days of sickness. Given the strain on the NHS and the potential numbers of sick employees we may have to deal with, what this essentially means is that employers are advised not to insist on fit notes for the foreseeable future.
In response to a question from the Leader of the Opposition, the Prime Minister refused to be drawn on whether the emergency legislation would allow SSP to be paid to those not currently eligible, such as workers on zero-hours contracts.
The emergency legislation has not yet been passed, so watch this space.
What happens if someone gets stuck overseas and cannot return for reasons related to the virus or has to self-isolate after returning from overseas?
It is possible that you could have an employee who suddenly finds themselves unable to attend work due to being on holiday or a work trip and not being able to return, due to cancelled flights or due to the need to self-isolate. If possible, they can work remotely. If that is not possible, then on the question of whether you need to keep paying them, this will depend on a number of factors.
If they cannot work, then the reasons for them being unable to work will be relevant. If they cannot work because they do a job that cannot be done from home, then it may be appropriate to pay them. If they could work but they have not got the relevant equipment (i.e. laptop) with them, despite being instructed to have that with them at all times, then not paying them may be an option, depending on all the circumstances. If they cannot work but are self-isolating or have symptoms, then it looks like they will be entitled to SSP.
We recommend looking at each of these on a case by case basis and keeping an eye out for government updates on the topic.
Working from home/limiting travel
Many employers are running test days, pushing their employees out to work from home for a day to see how their tech holds up, in order to be more prepared in case there is a need to implement working from home across the board. Many employers are encouraging their workforce to work from home already, to keep risks to a minimum. Provided that an employee can work from home and suffers no negative effects from doing so, such as missing important meetings that other attend or somehow being isolated when others are not, then there are few downsides from moving to this model of working for the near future.
Work travel, so far as we can see, has come to an almost complete halt and nothing but completely essential work related trips are taking place and this seems like a reasonable approach, if it is something that can be achieved.
What about fear in the workplace?
Employers should be extra vigilant to ensure that anyone with symptoms stays home or goes home as soon as possible. If you have any employee who refuses to attend work because they are afraid that they may catch the virus, then this will have to be handled very carefully and the context of that fear would need to be considered in deciding your response. Disciplining someone who refuses to attend work could lead to a legal claim, if there are genuine reasons for their fear that you have not properly assessed, before taking such action.
If you find out that you have an employee who has the virus, the current government guidance is that closure of the entire workplace is not recommended. There is no statutory requirement upon employers to disclose that they have had an employee with the virus and this is for the employee to report. The local Health Protection Team should then contact the employer to discuss the case, identify people who have been in contact with them and advise on any actions or precautions that should be taken. If the local Health Protection Team does not get in touch (which is possible, given the pressure they may be under), the employer will need consent from the employee to pro-actively reach out to the HPT because the employee's health is a matter of privacy for that individual.
A risk assessment of each setting will be undertaken by the HPT and advice provided on the management of staff and members of the public will be based on this assessment.
The HPT will also be in contact with the employee directly to advise on isolation and identifying other contacts and will be in touch with any contacts of the case to provide them with appropriate advice.
Advice on cleaning of communal areas such as offices or toilets will also be provided by the HPT.
Up to the Moment
There was a Downing Street briefing on 9 March 2020, whilst the emergency government response meeting was on-going and the main message from that was that the outbreak, when it hits the UK properly will be 'significant' but that for the moment, the advice remains to carry on business as usual and to keep washing your hands (to the tune of Happy Birthday (twice)). Sporting events are not being cancelled at this time.
We continue to learn more about the virus on a daily basis. It is therefore critical that employers continue to monitor and follow government guidance and work in a way which enables employees to be in a safe and calm environment.
FranceHas the French government issued guidelines for employers?
Based on these governmental recommendations as well as the employers’ obligation to protect the employees’ health and safety, business trips to China should be temporarily avoided, and employees currently stationed in China should be repatriated (it being specified that such employees may refuse their repatriation if the concluded a local employment contract and if their French employment contract is suspended).
If the employer has essential reasons to maintain such trips, extensive measures should be taken to protect the employees: failing to do so, such employees could invoke their right to stop working (“droit de retrait”) if they have a reasonable cause to believe that their life or health are facing a serious and imminent danger.
Must employers protect their employees from corona-related discrimination/harassment?
While designing their response to the coronavirus threat, employers should keep in mind that an employee may not be discriminated against based on his/her medical condition.
Finally, employers should prevent any form of discrimination or harassment targeted at employees of Asian descent that may arise from the coronavirus anxiety.
Coronavirus (2019 – nCoV) has broken out in Germany mainly through contacts at the workplace. 16 coronavirus infections in Germany are known until now of which 14 occurred among employees (and their family members) of the automotive supplier company Webasto in Bavaria. The infection wave at Webasto began during a meeting in Germany which was also attended by an infected employee from the company’s location in China.
Employers trying to determine their coronavirus response strategy face many questions as to which measures are permissible or even obligatory under labor and employment law to prevent infections at the workplace. Here are our answers to the questions most commonly asked.
What are the general health and safety rules employers should observe in the wake of the coronavirus outbreak?
The Working Conditions Act (Arbeitsschutzgesetz – ArbSchG) and the employer’s general duty of care towards employees requires employers to provide a safe working environment for employees which includes protection against infectious diseases. Employers must carry out a hazard assessment in order to determine the necessary health and safety measures. Depending on the degree of the specific hazard, it is advisable to inform the staff and conduct employee awareness training, adopt strengthened hygiene rules, instruct employees to report symptoms and positive diagnoses, conduct medical examinations within the company, change the working organization, etc.
In special sectors where the risk of coronavirus infection is increased (e.g., healthcare industry, airline and other travel industry), the employer may take further protective measures which are appropriate to prevent a coronavirus infection (e.g., instructing employees to wear a protective mask).
Can an employer screen the employees for fever?
Employers may consider fever screening employees, especially in sectors where there is an increased risk of a coronavirus infection. Only if there is a direct threat of coronavirus infection at the workplace, the employer’s instruction to employees to undertake a medical examination is recommended. This would be the case if, for example, one of the employees was diagnosed the coronavirus or the likelihood of coronavirus exposure is given because employees return from the officially declared risk area of Hubei Province in China. However, in the absence of any initial suspicion of a coronavirus infection at a company in Germany, instructions in connection with medical examinations at the workplace are likely to be disproportionate.
Can the employer send employees home if they display coronavirus-like symptoms and if so, must the employer continue remuneration for sick leave?
Employers can place employees on a leave if they show obvious symptoms of an illness (fever, cough, etc.). In this case, the Continuation of Remuneration Act (Entgeltfortzahlungsgesetz – EFZG) applies according to which the ill employee does not lose the claim to remuneration for a period of up to six weeks. The employer’s right to send the employee home results from the obligation to protect the health of the employee concerned, but also the health of all other employees working at the operation.
Also, if the employee does not demonstrate any symptoms but returns from an area which has officially been declared as a coronavirus risk area, the employer can order the employee as a precautionary measure to stay at home to avoid possible infection of other employees. Remuneration must be continued in such cases.
Can the employer still request employees to go on business trips to China?
There is no general right of the employee to refuse a business trip due to the current coronavirus outbreak in China. However, by asking an employee to go on a business trip, the employer must observe the general duty of care towards its employees. The employer should, at its reasonable discretion, weigh the employees’ interests against the company’s interests and assess every case by its individual circumstances.
Either way, employers should observe the Federal Foreign Office’s travel warnings. For now, only a travel warning for Hubei Province has been issued. The arrangement of business trips to this region would therefore not be appropriate and the employee would have the right to refuse without risking sanctions under labor law. The Federal Foreign Office also advises to postpone not necessary trips to China. In general, considerable restrictions on mobility within China can currently be expected. Fever screenings are possible as well as controls during travel within the country; quarantine measures are to be expected in case of symptoms.
In other cases, the employee’s individual situation, such as a pre-existing illness, may play a role in the weighing process and result in the employee being able to refuse the business trip.
Are employers obliged to call back their employees working in China?
The employer’s duty of care also applies to employees who are currently working in China for their German employer. More than 28,000 people in China are already infected with the coronavirus. The employer must observe the situation abroad and, if necessary, take action to protect its employees. Adequate measures can range from instructions on behavior (e.g., taking the taxi to work instead of public transportation, work from the home office) to calling the employee back.
Can employees ask to work from home because they fear a coronavirus infection?
Considering the currently low risk level in Germany, the fear of an infection at the workplace or on the way to work does not entitle the employee to stay home, even if the employee offers to work remotely instead. If the employee does not appear, the employer can issue a warning letter and ultimately even terminate the employment contract. Whether or not its employees have the right to work from home during the coronavirus outbreak is at the employer’s own discretion.
Can the employer order overtime work if many employees are absent?
If the coronavirus spreads increasingly wider throughout Germany and causes a significant part of the workforce to be absent from work, overtime for the remaining employees is practically unavoidable. In exceptional cases, employers can oblige employees to work overtime with the consequence that the permissible maximum working time is exceeded according to section 14 of the Working Time Act (Arbeitszeitgesetz – ArbZG). An exceptional case could be that understaffing results in significant economic disadvantages for the employer. This will have to be assessed on a case-by-case basis.
Must employers protect their employees from corona-related discrimination?
According to current media reports, more and more Asian looking people report to be victims of racial discrimination and even physical assaults have been reported. The General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – AGG) prohibits discrimination on the basis of race, ethnical origin, gender, religion or ideology, disability, age or sexual identity. Therefore, coronavirus protection measures should focus on all employees and not just individuals from China unless the unequal treatment can be justified by a reasonable ground. This would be the case if, for example, an employee travelling back from Hubei Province would receive special instructions by the employer as described above. Since employers are also obliged to prevent employees from any discrimination by other employees or customers, employers should respond to any racial or origin-based harassment of individuals belonging to certain nationalities where the coronavirus is most prevalent.
Are there employee privacy rights to be observed?
Employee privacy rights should be considered when evaluating whether and how to notify other employees about ill co-workers. Employees are generally not obliged to disclose any health information or specifically explain their illness neither to employer nor co-workers. However, in exceptional cases disclosure may be permitted if there is a true risk of an employee infecting others with coronavirus. Since the Public Health Department in Germany must be notified by doctors in case of any (suspected) coronavirus infection, it may be assumed that employers may be informed of the infection as well to be able to take protective measures.
Depending on the individual circumstances, employers have numerous possibilities to respond to the coronavirus outbreak. Should an employer become aware of a particular risk, it is obliged to take protective measures and can exercise its right to give special instructions to employees.
The current situation with coronavirus in Germany does not entitle employees to stay at home. However, where possible, business trips to China should be postponed or replaced by video conferences. Employers are advised to consult with their liability insurance association (Berufsgenossenschaft) if they want to take further health and safety measures, or in cases infections occur.
ItalyIn the last few days there have been several legislative actions aimed at dealing with the current health emergency due to the sudden and significant spread of coronavirus (Covid-19).
5. Privacy: As clarified by the Italian Data Protection Authority, employers must refrain from collecting, in advance and in a systematic and general way, including through specific requests to the single employee or unauthorized investigations, information on the presence of any flu symptoms of the employee and his/her closest contacts or otherwise falling into the extra-working sphere.
Additionally, the Authority has specified that the aim of preventing the spread of coronavirus epidemic must be carried out by individuals who institutionally exercise these functions in a qualified manner.
JapanGovernment Guidance / Requirements