• Employers face new challenges in light of the pandemic. Employees who are absent for prolonged periods of time can cause employers uncertainty. Your businesses productivity could be reduced, or other employees may be suffering by picking up the slack of those absent.

    We answer below some of the most frequent questions employers have been asking about employees who are absent due to COVID-19.

    Can employers require evidence for COVID-19 absences?

    Yes, employers can ask for ‘reasonable evidence’ after the first seven days of absence, which might include:

    • A self-isolation note from NHS 111
    • The notification from NHS or public health authorities that they have been in contact with someone with COVID-19 and therefore need to isolate
    • A fit note
    • An NHS or GP letter stating they should shield.

    How should employers handle clinically extremely vulnerable employees?

    • Employers should consider current guidance on shielding and protecting people who are clinically extremely vulnerable (CEV) to assess how to best manage these employees. This will include those with certain types of cancers, severe respiratory conditions, transplant recipients etc. Shielding guidance has changed throughout the pandemic. The updated guidance as at 25 February 2021 stated for these employees “you are strongly advised to work from home”. “If you cannot work from home, then you should not attend work”. This guidance has been updated again on 18 March 2021 but does not yet appear to reflect the new Public Health England guidance so it is expected that government guidance will shortly be updated again.
    • The Public Health England guidance confirms that from 1 April 2021, CEV are no longer advised to shield and will no longer be eligible for Statutory Sick Pay or similar benefits. It is understood that those on the shielding list will receive a letter from Public Health England with updated guidance.
    • If working from home is not possible, you could discuss with the employee a temporary alternative role or work pattern to assist the employee to work from home where possible. This would need to be agreed with the employee and any changes documented.
    • If there are no reasonable alternatives, and the employee qualifies, you could consider furloughing the employee under the Coronavirus Job Retention Scheme, now extended until 30 September 2021.
    • If none of the above is possible, as these employees are being advised not to attend work, they may be eligible for Statutory Sick Pay (SSP) or any enhanced Contractual Sick Pay or Employment and Support Allowance (ESA).

    What about employees refusing to attend the workplace because they live with someone who is clinically extremely vulnerable or are simply worried about attending work?

    Employers should tread carefully and consider several points:

    • Up to date public health advice and relevant government guidance
    • Are you meeting your health and safety obligations?
    • Employees reasoning for their concern(s)
    • Could it be discriminatory to refuse home working?
    • Is any other form of permitted leave available?

    An employee that lives with someone who is clinically extremely vulnerable or just worried about attending the workplace can continue to attend work. However, current guidance is that you are strongly advised to work from home, which it is understood will remain in place until 21 June at the earliest.

    It is therefore advisable to discuss each individual employee’s circumstances and, if you can, allow employees to work from home.

    When might disciplinary action be appropriate?

    After consideration of the above points, if there is no discriminatory issue and an employee has been asked to attend work but continues to refuse to, an employer may consider disciplinary action. However, we would urge caution and emphasise that each case should be considered on its own facts.

    It may be argued that employees failing to follow reasonable management requests and not attending their workplace are unlikely to be entitled to pay as this is an unauthorised absence and they are not ready, willing and available to attend work. However, this argument has not been tested and, again depending on the circumstances, may attract little sympathy from a tribunal.

    Care must be taken before any disciplinary action is brought, otherwise, for those with over two years continuous service, there would be a risk of successful unfair dismissal claims. In these circumstances there is also a risk of liability to the employer if an employee is reasonably refusing to attend work for health and safety reasons. Care should also be taken as to whether matters raised should be treated as whistleblowing.

    What about employees refusing to attend work due to a disability but they are not clinically extremely vulnerable?

    COVID-19 may pose a higher risk to certain disabled individuals. Disabled employees may have for example, respiratory conditions but may not be classified as clinically vulnerable or clinically extremely vulnerable.

    Employers insisting disabled employees attend work with the risks of dismissal or not being paid if they do not, could find themselves liable to numerous claims including unfair dismissal, disability discrimination, breach of contract and/or unlawful deduction of wages.

    Employees should be considered on a case by case basis, considering the points set out above. Dismissing or treating disabled employees detrimentally is likely to be high risk and we would urge that you take legal advice before doing so.

    Can self-isolating employees be obliged to work from home?

    This will depend on your contractual relationship with the employee and their state of health. If an employee is fit to work and they are not for example, having time off to care for a dependent, then employers may be able to insist they work while isolating – if in normal circumstances they can require employees to work from home.

    Employers are unlikely to be able to compel employees to work from home if there is no contractual right to impose this. However, this does not mean an employee will not agree to work from home when isolating as, if not working they are only likely to be entitled to SSP (but could be entitled to contractual sick pay).

    Can employers compel employees to take holiday when they are absent on sick leave?

    No, you cannot make an employee take holiday when absent on sick leave. An employee may agree or wish to take paid holiday as pay will be substantially more than SSP or no pay at all.

    What if the workplace must close temporarily due to insufficient staff numbers?

    Workers on sick leave due to COVID-19 or self-isolation will remain on sick leave until they are well enough to return to work. Once they are well enough to return, these employees should be treated in the same way as those who were not sick and sent home at the temporary closure. Closure and the business position should be communicated to all employees.

    As closure would be the employer’s decision, employees are ready, willing and able to carry out their work and arguably would be entitled to full pay unless there is no contractual requirement, for example zero-hours contract and casual workers. In these circumstances, employers may be able to claim under the Coronavirus Job Retention Scheme.

    How can we help?

    Poor management of employee absence could be very costly to a business, potentially resulting in successful discrimination or dismissal claims. The key is good communication and ensuring on-going discussion and review. If you are concerned about certain employees’ absences or require more general assistance, please do get in touch.

    Brachers Employment Team can offer you support and advice on how to manage employees on long term absence. If you would like more information on how we can support you handling issues and minimise the risk of successful claims, please book a free 30-minute online appointment with a lawyer from our Employment Team for an initial discussion on your needs.

    This content is correct at time of publication

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    Take a look at our Employment & HR page for useful information, resources, guidance, details of our team and how we may be able to help you

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