Knowledge

Covid-19, the novel coronavirus, is a rapidly evolving threat facing all sectors of society. It has been branded a Public Health Emergency of International Concern by the World Health Organisation, and the Government of Jersey is currently monitoring the situation and offering up-to-date advice online.

Although Coronavirus presents a real threat to Jersey, measures must be adopted simultaneously to ensure business continuity and virus containment within the workforce.

This briefing intends to provide businesses with an overview of what they need to be aware of from an employer's perspective.

What are the responsibilities of employers?

Do employers have to do anything?
As an employer, you have a duty to protect the health, safety and welfare of your employees and other people who may be affected by your business.

Employers should ensure their employees have an increased awareness of personal hygiene measures such as hand washing, the use of alcohol-based hand sanitiser and the facilities to use them. Regular updates and a dedicated Coronavirus contact are also to be encouraged.

Employers should ensure their employees are aware of the Coronavirus symptoms. These are:

• Fever
• Cough
• Headache
• Muscle pain
• Shortness of breath and breathing difficulties

Given the island's geography, it is likely that employees may have recently travelled abroad, either for business or personal reasons, and may require guidance as to whether they should self-isolate or not.

What if an employee contracts coronavirus?
The employee must be treated as being off sick. Any contractual provisions in accordance with the relevant Employment Contract will apply in such circumstances.

When should employees self-isolate?
The Government of Jersey has offered the following advice as to whether self-isolation is required:

• If an employee has been in contact with someone suffering a confirmed case of Coronavirus in the last 14 days.
• If an employee has arrived from a Category 1 country, even if no symptoms are shown.
• If an employee has arrived from a Category 2 country and shows symptoms of Coronavirus.

Categorisation of countries is a rapidly evolving situation and is heavily dependent on the density of the spread of Coronavirus in the region. A list of affected areas can be found here.

Can employers stop an employee from coming into work?
Yes - if an employee has Coronavirus, and the business has an established policy to that effect, in order to protect other employees. Employers may consider requesting that an employee does not come into work, where, for example, they have returned from a Category 2 country or for health and safety reasons.

Where an employee is not sick, but the employer has requested that they do not come to work, then alternative arrangements must be made. If the employee's role is suitable for remote working, this should be considered. Where an employee cannot work from home, it is good practice for the business to treat this situation as sick leave or at least offer the employee the option to take the period of self-isolation as annual leave.

Can employers stop an employee from self-isolating?
The uncertainty regarding Coronavirus may make some employees afraid of going into work. Employers should listen to any concerns staff have and try to resolve these in a pragmatic manner.

At present, employees are only required to self-isolate if they fall into any of the above categories. Nevertheless, some employees may choose to take the risk and visit an affected area, against advice.

Employees may wish to self-isolate as a precaution where they have returned from a Category 2 country, even where they display no symptoms. Whether they can or not is dependent on their job set-up:

If employees are able to work from home
If there are genuine concerns, employers should consider being flexible. However, employers must remember that they still owe their employees a duty to protect their health and safety even if they work from home. Due consideration should be given to ensure that the appropriate infrastructure is in place to support employees working from home. Employers should also ensure that they have an appropriate 'working from home' policy and to communicate their requirements of any work from home arrangements with their employees.

If employees are not able to work from home
Employers should try to resolve any concerns where flexible working is not an option. If an employee still wishes to self-isolate, they may be able to arrange time off as holiday or unpaid leave. However, the employer does not have to agree to this.

If an employee wishes to self-isolate, the employer should work with the employee to discuss the most appropriate course of action.

In the interests of health and safety in the workplace, an employer may ask for evidence that an employee visited an affected area. If the employee travelled to an affected area against government advice, an employer will require the employee to follow self-isolation guidelines.

High-risk employees, such as pregnant women or those with impaired immune systems, may wish to self-isolate as a precaution. In particular, some employees may have disabilities, which make them more likely to contract Coronavirus. As these are deemed protected characteristics under the Discrimination (Jersey) Law 2013, the employer has a duty to make reasonable adjustments. Failure to do so will place the affected employee at a substantial disadvantage and may result in a discrimination claim at an employment tribunal. Employers should be flexible and work with their employees to reach the best solution for all involved.

If an employee unreasonably refuses to attend work in relation to the Coronavirus outbreak, this could result in disciplinary action. Employers must act reasonably and should discuss the situation with the affected individual before commencing disciplinary action and attempt to come to a solution. For example, where the employee is scared of catching Coronavirus on public transport, the employee's working hours could be adjusted to avoid rush hours.

Similarly, employers must assess the risk regularly and consider business continuity and appropriate cover, should a large section of the workforce fall sick.

Do employers have to pay their employees during self-isolation?
This will depend on each employee’s specific circumstances and may evolve as the outbreak goes on:

Where an employee is suffering from Coronavirus:
Depends – this will be governed by the employee's employment contract. Where there is no contractual obligation, the employee may be able to claim government sick pay.

Where an employee is not sick and working from home:
Yes – this is considered business as usual and employees should be paid accordingly.

Where an employee is not sick but required by the employer to self-isolate and is unable to work from home:
Depends – this will be governed by the employee's employment contract. Nevertheless, it is good practice to offer pay as otherwise the employee could come in and potentially infect others.

Where an employee is not sick and has chosen to self-isolate or visited an affected country against the government's advice:
No – however, employers should consider alternative arrangements, such as the use of holiday entitlement, working from home (where appropriate) or unpaid leave, to be put in place.

The Government of Jersey has extended its Short Term Capacity Allowance benefit to anyone required to self-isolate due to government advice, but cannot work from home. In order to claim this, claimants must provide proof of recent travel to an affected country.

Employers will have to balance the need for business continuity and appropriate staff levels, against the risk of having one employee infect pockets of the workforce.

What if an employee needs time off to look after someone?
Employees are entitled to reasonable paid time off work to look after a dependant in an unexpected event or emergency. The extent and conditions of this time off will depend on the employer's internal policies and procedures.

Where an employee is required to care for a confirmed coronavirus sufferer, government policy will require the employee to self-isolate for two weeks.

Can an employer stop an employee from visiting an affected area?
If it is a business trip, the employer can stop an employee from visiting the affected area.

If the employee is making a personal trip for private reasons, the employer should refrain from imposing any restrictions of this kind. Employers should bear in mind that prohibiting an employee from visiting badly affected areas, such as China or Italy, could expose the business to discrimination claims.

Instead, the employer may discourage the visit and may require the employee to self-isolate at home, for health and safety reasons. Discouraging staff from visiting particular areas should apply to all staff universally, regardless of nationality or ethnicity.

Can an employer make an employee divulge travel information?
In short, no. Employees have a right to a private life and cannot be forced to divulge travel information without limitation. Employers may encourage the confidential disclosure of such information, but cannot demand such information. However, this is subject to the employee's obligations to ensure that their actions do not affect the health and safety of themselves or others. Therefore, they have an obligation to disclose information to their employers as to when they intend to visit high-risk countries.

What about pre-booked personal travel?
Both the employer and employee must be vigilant, as any country could quickly become a categorised area. Employees should contact their manager or HR department prior to their return to work, in order to discuss the next steps.

Although an employer cannot prevent an employee from going on personal travel, where an employee chooses to visit a Category 1 area, they must self-isolate for two weeks. In this scenario, if the employee is unable to work from home, the employer can request the employee uses holiday entitlement or unpaid leave to cover this period.

The employee must not show up to work under any circumstances prior to receiving the all clear following the end of the self-isolation period. Doing so could be considered gross misconduct and could lead to disciplinary action.

How can an employer deal with business absences?
As Coronavirus spreads, it is likely that Jersey will see some cases. In order to cover any absences, employers may want to consider requesting overtime, ending fixed-term contracts (within the contractual terms) or refusing annual leave if the service requires it.

Future situation
Covid-19 has been designated as a 'notifiable disease' under the Notifiable Diseases (Amendment No. 2)(Jersey) Order 2020. This will require all medical professionals to report any suspected cases to the Medical Officer of Health. As a result of this designation, employers are encouraged to keep an eye out for any potential legislative updates regarding Coronavirus and any further actions required.

What are the responsibilities of employees?
Employees have an obligation to ensure that their actions at work do not affect the health and safety of either themselves or others, such as co-workers and members of the public.

They may also be expected to co-operate with supervisors and managers on health and safety issues to enable their employer to comply with their duties under health and safety legislation.

Failure to comply with the above may lead to employees being faced with disciplinary action being taken against them.

Remember to take personal hygiene seriously and all necessary precautions to contain the Coronavirus. If you are based in Jersey, have any symptoms and have travelled to an affected area, please call the Coronavirus helpline on +44 (0) 1534 445566.

Employees working from home
In light of many businesses extending their 'work from home' policy to ensure its employees' health and safety is maintained, employees should be aware that their duties to take reasonable care of their own health and safety and that of others still apply. It is therefore important that they ensure that their home is an appropriate working environment and that the necessary facilities are in place beforehand.

Employers will often expect employees to achieve the same performance levels, processes and objectives that would apply if they worked in the office premises. Employees should therefore ensure that they fully understand their employer's expectations from them. For example, in absence of explicit agreement on flexible working hours an employee should assume that they are expected to work the usual business hours as provided for in their employment contracts.

Conclusions
Coronavirus is an evolving threat which requires careful monitoring. Each employer is different and will require specific policies unique to that business. Bedell Cristin recommends having a company-wide Coronavirus policy and that employers check staff handbooks accordingly.

Contact the Bedell Cristin employment team for all your employment law needs.

Useful sources
Jersey https://www.gov.je/Health/IllnessVaccine/Pages/Coronavirus.aspx
UK https://www.gov.uk/government/topical-events/coronavirus-covid-19-uk-government-response
https://www.acas.org.uk/coronavirus
International https://www.who.int/emergencies/diseases/novel-coronavirus-2019
https://www.cdc.gov/coronavirus/2019-ncov/index.html