Michael Legge: Should employers pay staff for periods of isolation due to Coronavirus?

Should employers pay staff for periods of isolation due to Coronavirus?

Responsible employers will want to do right by their staff, while protecting the business from potential disruption. Under the Health and Safety Act 1974, businesses have a duty to provide a safe workplace, so they must consider the best means to protect employees while maintaining continuity.

Where it is possible for people to work from home during self-isolation, if not themselves unwell, employers should accommodate it, particularly given the government guidelines instructing those who can work from home to do so.

While a business will make a saving on salaries while employees are quarantined at home, that may well come at the cost of customers, clients and service users, in which case a temporary flexible-working arrangement, where possible, seems prudent.

If an employee works in a shop, warehouse or similar environment that requires their presence, things are not quite so straightforward, however emergency measures announced in the Budget do go some way toward mitigating the cost to business as a result of having employees in isolation. Statutory sick pay (SSP) has been made available for both employees diagnosed with Covid-19 as well as people unable to work because they are self-isolating in line with government advice, even if they have no symptoms.

SSP is payable from day one for those affected, however, organisations with less than 250 staff can reclaim payments from the government for up to two weeks per eligible employee.

Some employees will benefit from an occupational scheme with better terms for sick pay and time off work, whether full pay or a portion of their salary, however, most employees will be forced to manage on basic SSP, which is £94.25 per week.

Employers whose staff are on zero-hours contracts are not obligated to pay SSP, whether unwell, isolating or both; those individuals will need to apply for Universal Credit, and Employment and Support Allowance (ESA).

Employers could well receive requests for emergency time off, which employers have to grant, however, businesses are under no obligation to pay that person’s salary. It is likely that most employers would allow someone to take time off as a holiday, which in the majority of cases would be paid, but the employer is not legally obligated to sign it off.

The closure of all UK schools, except for the children of key workers, will also raise questions around what payments, if any, workers are entitled to while remaining at home to care for children.

Parents are entitled to take time off work to look after children by way of ‘dependant leave’, which would be valid in the current circumstances. While staff will not lose their jobs due to taking time off, there is no obligation for the employer to pay their salary while on leave.

Another option is to negotiate paid holiday, providing the individual has adequate entitlement. However, we can expect the schools to be closed for quite some time, so holiday entitlement will eventually run out.

Unpaid leave is likely to be the only available option for many parents, unless employers are prepared to allow parents to try working at home with their children to see if it is possible without a drop in productivity.

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Ultimately, businesses need clear, up-to-date advice from the government and UK health agencies, with guidance on navigating what is a very challenging and completely unprecedented situation.

Michael Legge is a senior associate at JMW Solicitors