How should employers respond if employees are affected by school closures?
There is limited statutory provision for time off for employees who have to look after their children when schools, nurseries and other childcare providers are closed. Employers should keep in mind that advice on self-isolation and social distancing during the coronavirus outbreak is likely to make it more difficult for employees to make alternative arrangements for the care of their children. Employees may have no option but to stay at home themselves.
Employers should support an employee in this situation to work from home if possible and should consider making adjustments to the role and/or working hours to enable this. If the employer has a policy that employees should not be responsible for looking after their children at the same time as working from home, this policy may need to be relaxed.
Where the nature of the role and/or the employee’s childcare responsibilities mean that working from home is not an option, employers will need to consider alternative arrangements, such as a period of furlough. Government guidance confirms that employers can furlough employees who are unable to work because of caring responsibilities resulting from the coronavirus crisis and gives the example of employees who need to look after children who are at home as a result of school and childcare facilities closing.
An employee may also be unable to work because they have no alternative childcare if their child is required to self-isolate. An employee in this situation would not have the right to paid time off (unless provided for in their contract of employment), so a period of furlough may be a potential solution for both employer and employee.
To be included in a claim following the extension of the Coronavirus Job Retention Scheme from 1 November 2020, an employee must have been on the employer’s payroll on 30 October 2020 (or 23 September 2020 if they are rehired and furloughed, after the termination of their employment).
Alternatively, employees with at least one year’s service are entitled to up to 18 weeks’ unpaid ordinary parental leave for each child under the age of 18.
The statutory right to time off for dependants provides for a period of emergency unpaid leave to allow employees to take the action necessary because of the unexpected disruption or termination of arrangements for the care of a dependant. This would cover time off to arrange alternative childcare in the event of a school closure, but it does not cover extended time off for employees to look after their children themselves.
Can an employer require employees to have a COVID-19 vaccination?
Employers have a duty to ensure – as far as is reasonably practicable – the health and safety at work of their employees. Asking employees to agree to a vaccination against COVID-19 is likely to be a reasonable step to take to reduce the risk to employees’ health. Vaccinations are not currently available for employers to buy privately to provide for their employees, but employers can encourage employees to take up the vaccine when they are eligible under the national programme.
However, if employees do not agree to a vaccine, employers are limited in what they can do, beyond encouraging take up. If the employee works with vulnerable people, it may be reasonable to make the employee aware that they will not be able to continue to do that work if they refuse to have the vaccine.
An employer could consider informing employees that refusing a vaccination could lead to disciplinary action but this is a risky strategy as employees may feel strongly that this should be a personal decision. It would also risk complaints relating to discrimination on grounds of religion or belief, disability and age, constructive dismissal and human rights issues. Employers should be aware that employees may have a medical reason for not getting the vaccination.
It is currently unlikely that an employer would be able to use health and safety grounds to justify taking disciplinary action against an employee for refusing a vaccine, particularly in the early stages of the vaccination programme. This may change over time, but there is still likely to be a very high threshold to meet to justify such a policy. It may be possible in exceptionally high-risk circumstances, where alternative measures have been taken into consideration and where the policy accounts for the particular circumstances of individual employees.
Can an employer require employees to be tested for COVID-19?
All individuals with symptoms of COVID-19 are eligible for a test provided by the NHS to show if they currently have the virus. Some employers may consider providing testing for their own employees, including where they do not currently have symptoms, to prevent transmission in the workplace.
Information about employees’ health, including whether or not they have tested positive for coronavirus, or have particular symptoms, is special category data under the General Data Protection Regulation (GDPR). Employers considering testing employees for coronavirus should do so only if they can comply with their GDPR obligations relating to the processing of such data.
The Information Commissioner’s Office (ICO) has published guidance for employers on workplace testing which states that employers are likely to be able to rely on their health and safety duties as a ground for processing special category data in these circumstances, but that the employer should carry out a data protection impact assessment before carrying out testing and should process employees’ health data only if this is necessary and proportionate. They should collect the minimum data necessary and ensure that this is kept secure. They must provide employees with information, including on what health data will be collected, what it will be used for, who (if anyone) it will be shared with and for how long it will be kept.
If an employee does not agree to take a test, they cannot be forced to do so. In certain circumstances, it may be open to employers to take disciplinary action against an employee who refuses a test, but this would depend on factors such as the nature of the employee’s work and any evidence on the necessity of testing in the particular environment.
What should an employer do if an employee who is shielding because they are clinically extremely vulnerable from coronavirus cannot work from home?
People who are at very high risk of severe illness from coronavirus because of certain underlying health conditions are referred to as being ‘clinically extremely vulnerable’. These people would have received notification from the NHS that they are in this group and would have been advised to ‘shield’ at various stages of the coronavirus pandemic (depending on local and national restrictions in force).
Employers who have ‘clinically extremely vulnerable’ employees should ensure that they are aware of the most up-to-date guidance for their region. For example, current government guidance applicable to England is that ‘clinically extremely vulnerable’ employees should not attend the workplace.
An employee who is in the ‘clinically extremely vulnerable’ group may also be defined as a disabled person under the Equality Act 2010. Their employer must ensure that it does not discriminate against them because of something arising from their disability, i.e. because they are shielding and must consider what reasonable adjustments should be put in place for them.
Where a vulnerable employee is not able to do their own job from home, but could work from home in an alternative role, it is likely to be a reasonable adjustment to allow them to do so.
Where working from home is not possible even with adjustments, the employer should consider furloughing them under the Coronavirus Job Retention Scheme. HM Revenue and Customs guidance on the Scheme confirms that employees can be furloughed in these circumstances.
What should an employer do if an employee refuses to wear a face covering when this is required?
It is a legal requirement for staff in some workplaces to wear a face covering. The rules on which workplaces are covered differ in England, Scotland, Wales and Northern Ireland. A face covering is something that safely covers the nose and mouth (often referred to as face masks, but they are different to the types of face masks that are required as personal protective equipment, for example in medical settings).
In addition to the legal requirements around face coverings, employers must comply with their existing health and safety obligations towards employees and customers. Employers must carry out a risk assessment to identify the measures necessary to prevent the transmission of COVID-19 in the workplace. This risk assessment may conclude that the use of face coverings in the workplace is necessary.
Some people are exempt from the requirement to wear a face covering, where they have a reasonable excuse not to wear one. The Regulations applicable to England and Scotland state that this includes where someone is prevented from wearing a face covering by a physical or mental illness or disability, or because wearing one would cause them severe distress. The definitions in the Regulations applicable to Northern Ireland and Wales are the same as those for England and Scotland, except that the Northern Ireland Regulations do not mention physical or mental illness, and those for Wales do not mention severe distress.
If an employee working in an environment where face coverings are required refuses to wear one, the employer should ask them for the reason. If the employee does not have a legitimate reason for not wearing a face covering, a failure to wear one is likely to be a refusal to follow the employer’s reasonable instruction and therefore grounds for beginning a disciplinary process.
Where an employee has a legitimate reason for not wearing a face covering and is exempt under the relevant Regulations, the employer should consider if their role could be adjusted so that they can keep at least 2m from others or be separated from others by a screen. The employer’s risk assessment should include consideration of other options, such as the use of a face visor/shield. Employers must ensure that they do not discriminate against employees with a disability when enforcing rules on wearing face coverings. The employer should discuss with the employee what reasonable adjustments could be made.
Although government guidance for England states that people do not need to provide medical evidence of their reason for not wearing a face covering, this will not necessarily always apply in an employment setting. Where it is necessary to consider reasonable adjustments for a disabled employee, or where the employer has reasonable grounds for thinking that the employee is falsely claiming to be exempt, the employer will generally be justified in asking for evidence.
What obligations does an employer have to an employee who lives with someone who is at very high risk of serious illness from coronavirus?
People who live with someone who is in the ‘clinically extremely vulnerable’ group are advised to follow the guidance on social distancing carefully. However, they are not required to take the shielding measures themselves.
Employers should discuss the options with individual employees who live with someone who is clinically extremely vulnerable. It may be appropriate to take measures to allow them to work from home, or for them to remain on furlough for longer than other employees.
Author: Rosemary Darby-Jenkins, Director, Signpost HR Solutions
Rosemary has over 30 years’ experience in HR for the private and public sectors and has run her own Dorset-based consultancy for the last 10 years. She and her team specialise in providing personalised, pragmatic advice on the full spectrum of HR issues as well as management skills training for people managers.