Employers have an obligation to ensure the health and safety of their workforce – in many European countries this is a strict liability duty, rather than a "reasonable efforts" test. Regardless of this legal obligation, employers will of course wish to ensure they keep their employees safe and healthy. Here is some practical advice for employers and examples of some of the questions which employers may be facing:
Communication and prevention
- Regularly monitor and follow government health recommendations in your local country and COVID-19 updates and recommendations from the World Health Organisation
- Remind employees of obvious recommendations such as regularly and careful washing of hands, put up notices indicating recommendations
- Ensure that the HR team are in close contact with managers and employees – doing a tour of the offices – to ensure awareness and the importance of respect for guidelines
- Where elected employee representatives and health and safety committees are in place, ensure that the employer works closely with them to ensure coherent communications and decisions on preventive measures to take
- Ensure in particular that employees planning to travel follow government recommendations and travel guidelines
- Identify which employees have travelled recently to the particularly at risk zones and ask them to self-quarantine if appropriate
- Clearly communicate to employees that they must self-quarantine if they have been exposed to any persons infected
- Ensure that managers are clear on policies and that there is an identified HR point of contact for all queries to ensure questions are dealt with quickly and a coherent approach is taken
- Take immediate action if an employee is infected or is suspected of becoming infected – to ensure a period of quarantine and identify which other employees and clients the infected employee has or may have come into contact with during the period at risk. Ensure all such individuals are informed or the risk and if applicable also ensure these employees self-quarantine
- Identify any employees with medical conditions which mean that they are particularly at risk in the event of infection and take particular protective measures in relation to them if possible – allow working from home, adapt the working space if necessary, or, if the employee agrees, taking RTT days, holiday etc.
- In the event of a situation of imminent danger instruct employees to work from home (subject to verification of local law)
- Cooperate fully with the Company Doctor and medical recommendations – ensure that the Company Doctor has a clear point of contact within the HR team
- Perform routine environmental cleaning of work places
- Allow remote working where possible in particular to avoid placing employees at risk in particular in the case of employees with conditions which mean they are particularly at risk
- Ensure that the critical response plan is in place and properly tested – e.g. if you need to close the office ensure that you have a means to rapidly and reliably contact all employees
- Ensure that employees have a point of contact within the HR team with whom they can raise questions, confidentially if necessary
Some of the questions employers may face from employees…
- Can the employer refuse access to the workplace by an employee who has potentially been exposed to the virus (e.g. returning from a zone at risk or who has had contact with an infected employee?)
- Can the employer force an employee who exhibits symptoms to consult a doctor / leave the premises?
- For employees in quarantine because of an infection – when does sick pay kick in?
- To what payments are employees in preventive quarantine (i.e. who have been in contact with an infected person but do not show symptoms) entitled to? Salary or sick pay?
- Is there a right for the employee to work from home if they are simply worried about being infected, but without there being a clear risk?
- Is the employee entitled to sick pay to stay home and look after children who are infected/have symptoms?
- Does the employer have to pay employees who refuse to come into work if they can't in practice work from home?
- Can employees refuse business travel to high risk countries/areas?
- Can an employer look at reducing working time temporarily/chômage partiel etc. in circumstances where there is a reduction in activity as a result of the impact of the virus?
- Can an employer to disclose the name of an employee who might be infected to protect other employees? What information can be given? What data protection considerations will be relevant?
- Can employers impose holidays on employees? or require employees to cancel holiday or prevent them from travelling for personal reasons?
- Can employers defer the arrival of new recruits who have signed contracts and are due to start during this period?
- Can employees refuse to visit clients premises or attend external meetings during this period of uncertainty?
- Must employees notify the employer if family members fall sick?
- Can employees take paid leave to care for family members?
- Should employers be organising a specific information session with their works councils to discuss health and safety prevention plans?
- Is there an obligation to convene the works council / health and safety committee / CSE and consult with them?
- If the works council / health and safety committee / CSE requests a meeting must the employer agree to this?
- Are any government subsidies available if the business is adversely impacted?
- Do any applicable collective agreements provide for enhanced payments to employees on sick leave on top of the State payments?
- United Kingdom
- Coronavirus (COVID-19): UK government response
- Coronavirus (COVID-19): latest information and advice
- Public Health England guidance on the novel coronavirus, COVID-19, for employers and businesses.
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The contents of this publication are for reference purposes only and may not be current as at the date of accessing this publication. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.
© Herbert Smith Freehills 2021