March 17, 2020
Whatever industry you are in, you are undoubtedly concerned about preparing your business to face the threat of the novel coronavirus (COVID-19).
Below, we identify some of the key considerations for UK-based businesses working to reduce the risk of employee exposure. We also outline key steps to take when an employee tests positive for COVID-19 or must care for someone with the virus.
The UK government response to the outbreak evolves daily, and we encourage employers in the UK to monitor UK government and National Health Service Guidance and legislative developments over the coming days and weeks. In a television address of 16 March 2020, the UK government said the population should now avoid “non-essential” travel and contact with others, and everyone should work from home where possible. Meanwhile if one person in any household starts to display symptoms (a new continuous cough and/or high fever), the entire household must stay at home for 14 days.
Options for Reducing the Risk of Employee Exposure to COVID-19
Employers in the UK have many options for reducing the risk of employee exposure but each comes with its own risks that should be managed carefully. The list below is not intended to be exhaustive, and is also focused on managing employee exposure to the virus. Additional considerations may apply to customers, vendors, contractors and others with whom you interact.
Workplace Practices: The UK government and the World Health Organisation (WHO) have recommended a number of ways to prevent the spread of infections in the workplace, including promoting handwashing by providing a place for employees to wash their hands thoroughly with soap, displaying posters promoting handwashing and putting sanitizing hand rub dispensers in prominent places around the workplace and regularly re-filling them. Offering guidance from occupational health and safety officers, briefings at meetings and providing information on the intranet to encourage frequent handwashing has also been recommended.
WHO has published guidance on ensuring workplaces are kept clean and hygienic, recommending regularly cleaning surfaces and objects with disinfectant. In some workplaces, it may be appropriate to install high-efficiency air filters and increase ventilation rates and employers in the UK have been recommended to ensure paper tissues are available along with closed bins for hygienically disposing of them.
WHO has also recommended advising employees and contractors to stay home when they are unwell, even with a mild cough or low-grade fever, and promoting remote working to allow employees to avoid public transport and crowded places (see below).
Restricting Travel: Many employers in the UK are restricting business travel and it would be advisable for employees and contractors to consult national travel advice before going on any business trips. Views regarding the appropriate level of travel restrictions may vary by industry.
Employees may also be exposed to COVID-19 through personal travel. Employers in the UK may decide to require employees to notify Human Resources if they or their close relatives travel to affected areas and, if their travel indicates an elevated risk, employers in the UK may consider excluding them from the workplace for an appropriate period of time.
Restricting Visitors: Employers in the UK may also wish to restrict visitors to the workplace and to make it clear that individuals who have travelled to high-risk countries, are ill, are being quarantined or have been instructed to self-isolate under NHS or other medical guidance will not be allowed to visit the office.
Instituting Work-from-Home/Telecommuting Policies:
As noted above, the UK government has advised that the population should now avoid “non-essential” travel and should avoid unnecessary contact with others, recommending that employees and contractors in the UK should work from home where possible. Accordingly, where some or all of an employee’s work may be performed remotely, employers in the UK should permit or require employees to work from home until the UK government guidance has been relaxed.
In the absence of an express power to do so, formally requiring employees to work from home, particularly on a long-term basis, may constitute a variation of the employment contract and require employee consent. It is, however, unlikely that employees would object to a request to work from home in the circumstances, given the alternatives.
For many employers in the UK, although a short-term home working policy may be feasible in these pandemic conditions, permanent changes would pose an undue hardship on the business. Therefore, when implementing a new work-from-home/telecommuting policy or expanding an existing one, employers should take steps to mitigate the risk that these temporary changes create an unworkable precedent for the future. Communicating the short-term and emergency nature of policy changes when requesting consent/informing employees of implementation of the policy is one way to limit risk. Furthermore, employers should retain the right to monitor, modify or withdraw the policy at any time.
Employers in the UK should be mindful that when employees work from home, doing so may raise its own exposure to potential liability for employment law violations. Key considerations include:
Employers in the UK should separately consider the increased cybersecurity risk of a large proportion of the workforce working remotely and ensure that their networks are prepared for the increased traffic and security risk. Employees should be warned against use of unauthorised software should they be required to use their own electronic equipment.
Instructing Employees Not to Work:
Given the most recent televised UK government guidance, employers in the UK should instruct employees to work from home where possible. Where it is not possible to work from home, some employers may conclude that entire facilities should be temporarily shut down, in which case the primary concern will be the question of payment during the shut-down; that is addressed below. In the event that COVID-19 requires a long term or potentially permanent closure of any facilities or layoffs of workers, employers should ensure that employees and their appropriate representatives are consulted in accordance with UK redundancy laws.
Employers in the UK may identify specific people or groups of people who should stay home on a temporary basis. For these employers, additional considerations include:
Employers in the UK will also need to decide whether to pay employees for unexpected time off due to COVID-19. In so doing, employers in the UK should be mindful of the following:
What to Do If an Employee Tests Positive or Needs to Care for an Ill Family Member:
If a staff member or member of the public becomes unwell in the workplace: the government’s COVID-19: guidance for employers includes: they should be removed to an area at least 2 metres away from other people, isolated behind a closed door if possible and a window opened there for ventilation. They should avoid touching people, surfaces and objects and should use a separate bathroom, if available, whilst waiting for medical assistance. They should call NHS 111 (or 999 if they are seriously ill/injured or their life is at risk) and outline their symptoms.
If a staff member or member of the public with confirmed COVID-19 has recently been in the workplace: A local Health Protection Team from Public Health England will contact the management team to discuss the case, identify people who have had contact with them, advise on actions/precautions to take, and conduct a risk assessment. Closure of the workplace is not recommended. The team will advise staff who have had close contact with the case or bodily fluids. Those people will be asked to self-isolate for 14 days, following an advice sheet, and the team will follow up with them. If they develop new or worse symptoms, they should call NHS 111; if they become unwell with cough, fever or shortness of breath they will be tested; if they test positive, they will be treated. Staff who have not had close contact with the confirmed case can attend work and need take no precautions. The team will also contact the case and their contacts to advise.
Cleaning and waste disposal: All surfaces with which the symptomatic case has come into contact must be cleaned. Public areas through which the person passed briefly need not be specially cleaned/disinfected. If someone becomes ill in a shared space, it should be cleaned; details of how to clean and how to dispose of waste are available in the government’s COVID-19: guidance for employers.
Suspected cases and returns from overseas travel: There are no restrictions or special control measures required while test results are awaited, in particular there is no need to close the workplace or send staff home. Although, as noted above, the list of specified countries/areas has been withdrawn, UK government guidance to employers in the UK still states that people who have returned in the last 14 days from Hubei Province (including Wuhan), Iran, Daegu or Cheongdo in the Republic of Korea, and any area within Italy under containment measures, should avoid attending work, call NHS 111 and stay at home. Under the withdrawn list, people returning from a number of other countries should self-isolate and call NHS 111 if they develop symptoms; as noted above, this instruction now applies to anyone with symptoms, whether they have travelled or not.
Certifying absence: UK government guidance strongly suggests that employers in the UK use their discretion regarding evidence of medical reason for absence from work where an employee has been advised to stay at home due to suspected COVID-19. By law, medical evidence is not required for the first 7 days of sickness; thereafter, the employer decides what evidence is needed – this does not have to be a “fit note” from a doctor.
Caring for dependants: Acas guidance notes that employees are entitled to time off to care for dependants in an unexpected event or emergency, which would apply to the COVID-19 pandemic, for example if they need to care for a child or other dependant who is sick or needs to self-isolate or be hospitalized. There is no statutory right to pay for this time, but employers in the UK should check for contractual rights or policy statements they have made. The amount of time off must be reasonable in the situation, and employees might take some time as holiday.
Data protection: Data regarding an individual’s health is “special category” personal data under the GDPR and Data Protection Act 2018. Employers in the UK may only process it if they have proper grounds to do so. The health exemption enables occupational health professionals who have confidentiality obligations to process data relating to health if necessary for e.g. assessing the employee’s working capacity, medical diagnosis, and treatment. Employers may consider it possible to conduct e.g. temperature checks if such a professional were used and consent obtained although we are not aware of this having been tested with data protection authorities to date. A generic consent to health checks in employment contracts is unlikely to satisfy GDPR requirements. The ICO has stated it will “take into account the compelling public interest in” the pandemic and employers in the UK can disclose to colleagues that an employee has contracted COVID-19 if give no more information than necessary and, mostly, it will not be necessary to name the person; staff information can be shared with health authorities for public health purposes if necessary; and it is reasonable to ask people if they have visited certain countries or are experiencing symptoms – advising staff to call NHS 111 will minimize the information that the employer processes.
Gibson Dunn’s lawyers are available to assist with any questions you may have regarding developments related to the COVID-19 outbreak. For additional information, please contact any member of the firm’s Coronavirus (COVID-19) Response Team.
This client update was prepared by James Cox, Heather Gibbons, Georgia Derbyshire, Charlotte Fuscone and Harriet Codd. Gibson Dunn attorneys regularly counsel clients on the compliance issues raised by this pandemic, and we are working with many of our clients on their response to COVID-19. Please also feel free to contact the Gibson Dunn attorney with whom you work in the Employment Group, or the following lawyers in the firm’s London office:
 Sections 188 et seq. of the Trade Union and Labour Relations (Consolidation) Act 1992 requires an employer who is proposing to lay off 20 or more employees at one establishment within a period of 90 days or less to consult appropriate representatives of affected employees up to 45 days in advance.
 www.gov.uk website, BEIS and Public Health England, Coronavirus (COVID-19): guidance for health professionals and other organisations, 10 March 2002, available at https://www.gov.uk/government/collections/coronavirus-covid-19-list-of-guidance (“COVID-19 Guidance”)
 www.gov.uk website, Public Health England, Stay at home: guidance for people with confirmed or possible coronavirus (COVID-19) infection, 12 March 2020, available at https://www.gov.uk/government/publications/covid-19-stay-at-home-guidance/stay-at-home-guidance-for-people-with-confirmed-or-possible-coronavirus-covid-19-infection (“ ‘Stay at home’ Guidance”)
 BBC News, Coronavirus: PM says everyone should avoid office, pubs and travelling, 16 March 2020, available at https://www.bbc.co.uk/news/uk-51917562
 See Working Time Regulations 1998, available at http://www.legislation.gov.uk/uksi/1998/1833/contents/made
 See Acas, Coronavirus: advice for employers and employees, available at https://www.acas.org.uk/coronavirus
 ICO, Data protection and coronavirus, 12 March 2020, available at https://ico.org.uk/about-the-ico/news-and-events/news-and-blogs/2020/03/data-protection-and-coronavirus/
 ICO, Data Protection and Coronavirus: what you need to know, undated, available at https://ico.org.uk/for-organisations/data-protection-and-coronavirus/
Gibson Dunn attorneys are available to assist with any questions related to these developments. Please feel free to contact any of the Gibson Dunn lawyers listed above.
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