Coronavirus and Employment: Preparing for a Potential Second Wave

Quarantined Employees

Having established a number of “travel corridors” – countries that were deemed sufficiently low-risk that arrivals would not be required to self-isolate for 14 days on entry into the UK, the recent decision to remove Spain from the list at less than a day’s notice poses questions regarding pay and treatment of employees who are required to self-isolate on return from holiday (“quarantined employees”) if infections spike elsewhere:

What pay is a quarantined employee entitled to?

If it is possible for the employee to work from home, then they should receive their usual pay.

If it is not possible for the employee to work remotely or the employee is required to be present at a particular work location, the employer should check their sick pay policy and provisions on sick pay in the contract of employment, although it would be unlikely to apply for this scenario.

The government have confirmed that employees will not be eligible for statutory sick pay (“SSP”) unless they have coronavirus symptoms, are self-isolating because someone they live with has symptoms or they have been notified by NHS Test and Trace to self-isolate. There is therefore no legal requirement for employers to pay SSP to a quarantined employee who is not able to work from home.

If the employee was required to travel to Spain (or any country not included on the list of travel corridors) as part of their work obligations, it would be reasonable for the employer to pay the employee for any related period of quarantine as it is connected to their job requirements.

Can a quarantined employee take extra holiday?

Yes, if a quarantined employee has sufficient annual leave entitlement remaining and they are unable to work from home they may wish to take extra days’ holiday to cover any quarantine period. This would ensure that the employee continues to receive full pay both during and following their trip abroad.

Employers should adopt a clear, consistent policy on requests to use annual leave to cover the compulsory self-isolation period and consider whether to offer a period of unpaid leave rather than requiring that additional annual leave be used.

Can the quarantined employee be put on furlough leave?

This could be possible but only if the quarantined employee was previously eligible for furlough. In short, the quarantined employee would need to have previously been furloughed under the Coronavirus Job Retention Scheme (“CJRS”) for at least 3 weeks at any time prior to 1 July 2020 (see our article on flexible furlough here).

However, employers should be mindful that offering furlough to cover the quarantine period does not incentivise employee absences. An employee might find the prospect of a two week holiday abroad at full pay followed by a two week isolation on furlough pay quite attractive. Therefore employers may wish to confine any offers of furlough to eligible employees who have been ‘caught out’ by quarantine at short notice, rather than offering it to all eligible employees seeking to take annual leave.

What if a quarantined employee returns to work before the self-isolation period ends?

As it is a criminal offence for a quarantined employee to break the rules on self-isolation, quarantined employees should not attend the workplace. Employers should immediately send home employees that attempt to return to work in breach of the rules.

Employers are not under an obligation to police where employees may have travelled during periods of annual leave. However, as part of their general statutory duties to provide a safe place of work to all employees, employers should consider asking all returning employees to confirm that they have not visited Spain or any destination not included on the list of travel corridors and are not required to self-isolate.

Local Lockdowns

The situation regarding pay, holiday and furlough described above is the same for employees who are subject to local lockdowns designed to control a resurgence of the virus in specific areas. The government maintains a list of areas that are subject to local restrictions. Lockdown restrictions will differ by area but may include restrictions on travel (although travelling for work may be exempt as was the case in Leicester) and closures of non-essential business premises or individual workplaces. To prepare for interruptions caused by local lockdowns, employers ought to consider:

• What arrangements are in place to cover employees who are locked down and unable to work from home? Can existing staff in other areas cover this work or will temporary cover need to be sourced externally?
• Including greater flexibility in contracts of employment for new joiners and existing employees, for example by introducing a requirement to work from home when necessary and by negotiating lay-off clauses that will allow employees to be sent home without pay in the event of a local lockdown as it will not be possible to place new joiners or existing employees who were not originally eligible for furlough on the furlough scheme, and given that the CJRS ends on 31 October 2020;
• Whether amendments are required to holiday policies to require employees to take annual leave at short notice;
• Ensuring that sickness absence policies are clear on how cases of Covid-related self-isolation (including employees who test positive for the virus or who are contacted by NHS Test and Trace to self-isolate) are to be treated; and
• Supporting employees with childcare obligations (for example as a result of a school closure) who are unable to work from home by offering greater flexibility in working hours or informing these employees of their statutory right to unpaid emergency leave for dependants.

If you have any further queries about planning for or dealing with unexpected interruptions, including reviewing holiday and sickness absence policies, flexible furlough agreements and/or contracts of employment, please get in touch with our Employment team.