Employment Law

From 1 August 2020 onwards, it is intended that the shielding programme will be “paused” in England so clinically extremely vulnerable people will no longer be advised to shield. From an employment perspective, this means that, if they cannot work from home, shielding employees can then return to their workplaces, provided they are “COVID-19 Secure”, i.e. they comply with the latest government guidance. Employers should ensure that robust measures are put in place to enable shielding employees to safely return to work, and that they comply with their statutory duty to make reasonable adjustments for disabled employees. It is advisable for employers to speak to shielding employees on an individual basis in advance of their return to discuss the health and safety measures that have been put in place and to agree a plan for their return to work. 

The easing of shielding measures is also likely to mean that shielding employees will no longer be entitled to receive statutory sick pay (SSP) from 1 August 2020 if continuing to shield. If so, amending regulations will need to be published to provide that shielding no longer constitutes deemed incapacity for SSP purposes. The exceptions, where the shielding employee would still be entitled to SSP, are where they are self-isolating because they have coronavirus symptoms, are waiting for a coronavirus test result or have tested positive for coronavirus, they live with someone who has symptoms, is waiting for a test result or has tested positive, someone in their support bubble has symptoms, is waiting for a test result or has tested positive or they have been told to self-isolate by NHS Test and Trace because they have been in contact with a person who has coronavirus. However, it is also possible that a shielding employee’s GP may certify them as unfit to return to work by issuing them with a fit note, and, in that case, they would then still be entitled to SSP under the normal SSP incapacity rules. 

If they have been on furlough under the Coronavirus Job Retention Scheme, shielding employees can remain on furlough from 1 August 2020.

The NHS will maintain the Shielded Patient List and, should levels of COVID-19 increase in communities, those at highest risk may be advised to take more restrictive measures in future to keep themselves safe.

Shielding has been extended in Scotland until 31 July 2020 and in Wales until 16 August 2020. In both cases, the Scottish and Welsh governments are keeping next steps under review.
 

The Information Commissioner’s Office (ICO) has published guidance for employers on workplace testing during the coronavirus pandemic. It covers the extent to which employers can carry out tests on staff on their return to work to see if they have either coronavirus or symptoms of it.

The guidance makes clear that any testing needs to comply with the GDPR and the Data Protection Act 2018, and that any personal data relating to health is special category data. The topics covered in the guidance include:

• the lawful basis that can be used for testing employees
• demonstrating compliance with data protection laws, including the data protection principles
• data retention
• data sharing
• the exercise of data subject rights by staff
• the data protection considerations where staff have arranged their own tests and disclose the results to their employer
• the use of on-site temperature checks or thermal cameras for testing or monitoring staff. 

The government has produced guidance to help employers, employees and the self-employed in England understand how to work safely on their return to work during the coronavirus pandemic. The so-called “COVID-19 Secure” guidance currently comprises eight separate guides covering the following workplace settings: 

• construction and other outdoor work
• factories, plants and warehouses
• labs and research facilities
• offices and contact centres
• other people’s homes
• restaurants offering takeaway or delivery
• shops and branches
• vehicles. 

Businesses that operate more than one type of workplace may need to use more than one guide. Each guide includes a downloadable notice that employers can display in their workplace to show that they have followed the guidance. Guides for workplaces that are not currently permitted to be open will be published in due course, ahead of their opening. 

There is also general guidance which applies across all workplaces that are currently allowed to open and this sets out five key points for employers to implement as soon as practicable:

1. Employees must still work from home if they can, and employers should take all reasonable steps to help them work from home
2. Employers should carry out a COVID-19 risk assessment, in consultation with workers or trade unions, to establish what guidelines need to be put in place and then they should share the results with their workforce (and if they have more than 50 staff, they should publish the results on their website)
3. Workspaces should be re-designed to maintain two metres social distancing, wherever possible
4. Where employees cannot be two metres apart, the transmission risk should be managed
5. Cleaning processes should be reinforced.

Finally, to help employers with carrying out risk assessments, the Health and Safety Executive (HSE) has published a toolkit. The toolkit begins by setting out the steps that need to be taken by employers to manage risk and then it goes on to provide a risk assessment template document together with a number of example risk assessments covering various industries, including an office-based business, warehouse, local shop and food preparation and service. Finally, there are links to more detailed guidance for employers on managing risk.

The Maternity Allowance, Statutory Maternity Pay, Statutory Paternity Pay, Statutory Adoption Pay, Statutory Shared Parental Pay and Statutory Parental Bereavement Pay (Normal Weekly Earnings etc.) (Coronavirus) (Amendment) Regulations 2020 came into force on 25 April 2020. They have amended five sets of family-related payments regulations to ensure that an employee’s eligibility for statutory maternity pay (SMP), statutory paternity pay (SPP), statutory adoption pay (SAP), statutory shared parental pay (ShPP) and statutory parental bereavement pay (SPBP), and an employee’s entitlement to the higher earnings-related rate of SMP or SAP, is the same as it would have been had they not been furloughed under the Coronavirus Job Retention Scheme. This is done by providing that the employee’s normal weekly earnings are to be calculated as if, during the relevant period when they were furloughed, they were paid the amount they would have derived from their employment had they not been a furloughed employee. 

These amendments apply where the first day of the period in respect of which the statutory payment is to be made is on or after 25 April 2020.

The government has published sector-specific guidance for employers in England on social distancing in the workplace during coronavirus (COVID-19).  The guidance covers how social distancing and other measures might be implemented by employers to help protect their workforces and customers from coronavirus while still continuing to trade.

The sectors considered by the guidance are shops running a pick-up or delivery service, tradespeople who work in people's homes, construction, manufacturing and processing, retail, logistics businesses, outdoor businesses, visiting farms for animal health and welfare, fishing or other short-term offshore work, cargo-shipping or other long-term offshore work, transport businesses and waste management businesses.

Advice for business in the other nations of the UK is provided by the Scottish and Welsh governments and by the Northern Ireland Executive.

The government has published new guidance on what it has now called the “Coronavirus Statutory Sick Pay Rebate Scheme”. This scheme will repay small employers the current rate of statutory sick pay (SSP) that they pay to employees for periods of coronavirus-related absence starting on or after 13 March 2020. The guidance covers who can use the scheme and what records must be kept.

However, the online service that small employers will need to use to reclaim SSP is not yet available.

The government has issued a bulletin providing advice for employers regarding compliance with the National Minimum Wage (NMW) framework, particularly with regard to the effect under that framework of pay advances and loans to workers, in the context of the coronavirus pandemic.

The bulletin sets out how the practice of an employer making such pay advances or loans sits with continuing compliance with their obligations to pay the NMW. Nothing in the advice is new, but its guidance is useful clarification for employers at the present time.

Acas has published updated guidance for employers and employees on the coronavirus (COVID-19). The guidance now covers:

• social distancing and vulnerable people
• self-isolation and sick pay
• what to do if the employer needs to close the workplace
• what to do if an employee needs time off work to look after someone
• what to do if someone has coronavirus symptoms at work
• good practice steps for employers
• links to further advice on coronavirus.

The guidance is being updated on a daily basis. 
 

Employees who are unable to work for more than seven days because of coronavirus (COVID-19) can now obtain an “isolation note” through a new online service. The new isolation note, which can be used by employees as evidence of their coronavirus-related absence from work (either because they have symptoms or they live with someone who has symptoms) and so cannot work, is a temporary alternative to the fit note for use during the coronavirus pandemic. Employees can continue to self-certify for their first calendar week of absence.

The new online service is available through the NHS website, NHS 111 Online or via the NHS app. After answering a few questions, an isolation note will be emailed to the user. If they don’t have an email address, they can have the note sent to a trusted family member or friend, or directly to their employer. The service can also be used to generate an isolation note on behalf of someone else.

Firstly, the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 have amended the Statutory Sick Pay (General) Regulations 1982, to include, in the definition of persons deemed incapable of work for the purposes of SSP entitlement, those who are isolating themselves from other people in such a manner as to prevent infection or contamination with coronavirus, in accordance with guidance published by Public Health England, Public Health Wales or NHS National Services Scotland, and who by reason of that isolation are unable to work. The regulations came into force on 13 March 2020, are to be kept under review by the government and, in any event, will cease to have effect eight months after they came into force. Note that the amendment here would not include those who are working from home during self-isolation, as those individuals are still able to work and are working. Neither would it include those who choose to self-isolate because they are concerned about catching the virus, if their self-isolation isn’t in accordance with the latest published guidance.

Secondly, the Chancellor announced in the Spring Budget on 11 March 2020 that, as a special temporary measure, employers with fewer than 250 employees will be allowed to reclaim from the government the cost of providing up to two weeks of coronavirus-related SSP payments per employee. Further details on how employers can access the rebate will be provided in due course.

Thirdly, coronavirus has now been listed as a “notifiable disease” in England and Wales (following on from Scotland which had already done so), helping businesses to recover compensation through their insurance policies due to any impact from the virus, subject to their specific policy wording.

Finally, the temporary emergency legislation to provide that SSP will be available from the first day of sickness absence is still awaited. It is anticipated though that it will only extend to coronavirus-related absences and will not extend to sickness absences for other ill-health reasons.

The current rate of SSP is £94.25 per week and it will increase to £95.85 per week from 6 April 2020. However, those employees who earn less than £118 per week (rising to £120 per week from 6 April 2020) do not qualify for it.