Coronavirus – discerning myths from risks

A global health emergency, so far contained

The coronavirus (now officially called Covid-19) has caused significant disruption to daily life in China, with entire cities in lock down and travel restrictions introduced to minimise the spread of the virus from its epicentre in the Hubei province.

The World Health Organisation (WHO) has called the epidemic a global health emergency, but one that can be contained. So far, most cases of Covid-19 have indeed been confined to China, whose National Health Commission confirmed 70,620 positive diagnoses. According to the European Centre for Disease Prevention and Control and as at 17 February 2020, the total number of confirmed cases outside China is 705. This represents less than 1% of all confirmed cases, and includes a cluster of 355 cases originating from the cruise ship docked in Yokohama, Japan.

To put the virus into further perspective, WHO data based on 17,000 patients has revealed that 82% of all cases develop into mild symptoms only, 15% develop into severe symptoms, with 3% becoming critically ill. This rate may be much lower as there may be an under-reporting of the mildest cases, meaning that only those with more serious symptoms seek treatment and are being caught within the data. In contrast, 1 billion people across the world per year catch influenza, and the mortality rate can vary between 290,000 to 690,000 per year depending on the severity of the flu virus.

Employers should prepare for any acceleration in the spread of the virus

The current expectation is that very few UK-based employers will be directly affected by Covid-19, and levels of workplace sickness absence will remain normal and comparable to any other year. However, employers still need to be prepared and have contingency plans in place for any acceleration in the spread of the virus within the UK, in areas where containment measures are less effective.

Employers should assess their workforce profile and recent travel and business activities, to risk assess if its employees have been exposed to heavily affected areas, such as densely populated areas of China and South East Asia. If so, it may be a prudent precaution in workplace communications to refer employees to the current NHS guidance on Covid-19.

The current NHS advice is that individuals should call 111 if they fall into any of the following categories:

• They have been to Wuhan or Hubei Province in China in the last 14 days even if they do not have symptoms
• They have been to other parts of China, Thailand, Japan, Taiwan, Singapore, South Korea or Malaysia in the past 14 days and are displaying mild symptoms, including a cough, high temperature or shortness of breath
• They have been in close contact with someone confirmed with coronavirus in the past 14 days

Any person falling within these categories is also recommended to stay indoors and not to go to a GP surgery or hospital. The medical advice may be to isolate themselves for 14 days and remain at home, and not to go to work or other public places.

If an employee is advised to go into isolation, employers should check their contractual obligations

If an employee has been advised to isolate but is not displaying symptoms, or has mild symptoms only and is otherwise fit to work, then employers owe an overriding legal duty of care to protect the health and safety of its employees, visitors of its premises and users of its goods and services. This duty would, if necessary, include suspending the employee from attending work during any isolation period to minimise the risk of wider infection.

Employers will need to check the employee’s contract of employment, and whether there is an express right of the employer to suspend an employee from work on medical grounds, or to instruct them to work from home if this is possible. If such an express power exists, and provided it is exercised reasonably and with due sensitivity, the employee will have limited grounds in which to challenge their medical suspension, and any refusal to stay away from work would amount to a disciplinary issue by refusing to follow an employer’s reasonable instruction.

If there is no explicit contractual power of the employer to medically suspend the employee, or to require them to work from home, an employer will still have an implied right to require the employee to stay at home due to the wider health and safety obligations of the employer – unless there is an express clause guaranteeing an employee a minimum level of work.

Yet again, such a power must be exercised proportionately, reasonably and sensitively, and where practicable home working should be considered as an alternative to attending work and good communication with the employee during their suspension is maintained.

It is essential that any exercise of an express or implied power of an employer to medically suspend an employee or instructing them to work from home is based on the established facts of each individual case. No presumptions should be made to suspend based on an employee’s age or disability, or their national or racial origin, such as specifically targeting employees of Chinese or South East Asian heritage, but who have not otherwise had any known potential exposure to the virus.

Also, the circumstances of any suspension must be dealt with in the strictest confidence and on a need to know basis. This helps to protect the confidentiality of the employee’s personal data and medical information, to prevent the employee being ostracised once they return to work, and to avoid any breach of the fundamental employment term of trust and confidence which could entitle them to resign and claim constructive unfair dismissal.

Suspended employees’ right to be paid depends on their ability to work

If an employee is able undertake meaningful work from home, then they are continuing to provide their services to their employer under their contract of employment, and therefore remains entitled to be paid in full during the period of any isolation.

In contrast, if it is not practicable for an employee to undertake home working, and is essentially suspended from undertaking any duties, his or her entitlement to full pay depends on whether the employee is “ready, willing and able to work” but for their medical suspension.

Unless there is an express term in the employee’s contract to the contrary, an employee who is fit, able and willing to work but is instructed to remain at home due to their exposure to the virus, has an ongoing implied contractual right to full pay during their medical suspension.

However, where the employee is medically suspended, but is also unfit to work in any event due to their symptoms being sufficiently severe, their absence may be categorised as sickness absence rather than an enforced suspension, meaning they have an entitlement to statutory or company sick pay only depending on their employer’s sick pay policy.

If you need further advice on your contractual duties, on encouraging your workforce to report any potential exposure, or ensuring they feel wholly supported when suspended from work, please don’t hesitate to get in touch.