At the time of writing the number of confirmed cases of Coronavirus in most countries is relatively low, with no confirmed cases yet in the Slovak Republic and only a few cases in the Czech Republic. Despite the inevitable fears of a global pandemic it is not clear what the impact of the virus will be worldwide. However, given the significant impact it has already had in China and elsewhere, all employers are advised to put in place robust preparatory and contingency measures now. This is particularly true given the possible long-term nature of the disruption which Coronavirus presents and that it is difficult to predict the spread of the virus. These measures might include:
General health and safety duties. In a number of countries employers have a duty to ensure the health, welfare and safety of all staff in the workplace. This could include maintaining a working environment that is, so far as is reasonably practicable, safe, without risk to health and adequate as regards facilities and arrangements for staff members’ welfare at work. Even where this is not a feature of local health and safety law, it will clearly be best practice for international employers. Communication with staff will also be key, including communicating that staff are expected to follow the latest national government guidance.
We also recommend the adoption of additional hygiene measures. Many employers are already, for example, providing anti-bacterial wipes and gels in offices and toilets and arranging for all surfaces and equipment to be cleaned regularly with anti-bacterial products.
Special groups of staff. Employers should, in accordance with any applicable legal obligations or company policy, conduct risk assessments and monitor the risks posed by Coronavirus to anyone at particular risk. This might include those with pre-existing health conditions, pregnant employees and those who otherwise have compromised immune systems. Although there is currently a low risk of infection in most countries, you should monitor the situation. If the risk profile increases, businesses may want to consider steps to reduce the risk to these individuals such as asking them if they want to work from home.
Should we be providing staff with face masks? The medical evidence on the benefit of face masks outside of a clinical setting is not well-established and incorrectly worn masks will not effectively prevent infection. The WHO advises use of a mask only for those who have respiratory symptoms (coughing or sneezing), have suspected Coronavirus infection with mild symptoms, or are caring for someone with suspected or known Coronavirus infection. It advises that the most effective forms of protection against Coronavirus are to frequently clean your hands, cover your cough with the bend of elbow or tissue and maintain a distance of at least 1 metre (3 feet) from people who are coughing or sneezing. However, it is important that employers continue to monitor WHO and national government advice.
Some employers may find themselves in a situation where staff members are unable to attend the workplace. For instance, some countries have introduced travel restrictions which may prevent staff from getting to work, or they may be in quarantine or self-quarantine in accordance with national government rules or guidance (some governments, including the UK Government, have published guidance on when individuals should ‘self-isolate’). No such comprehensive guidelines have yet been published in Slovakia or the Czech Republic; however, in the Czech Republic the Ministry of Health in cooperation with the National Institute of Public Health has issued several recommendations on how to behave responsibly and how to react when returning from high risk countries. However, should the guidelines be issued it will be important, within the parameters of local privacy laws, for employers to be able to ‘keep track’ of staff members’ travel plans (whether business or personal) in order to be able to assess which employees should self-quarantine in line with national government guidance or any specific company policy. Equally important will be ensuring that the workforce is kept apprised of how fast guidance is developing on which countries to avoid unnecessary travel to.
Our advice is that employers should:
Whilst agreeing to pay staff who are unable to work (potentially for a prolonged period) may appear cost prohibitive, this needs to be weighed against the adverse reputational risk of being seen to punish those who self-isolate. It is also possible that staff members could fail to disclose that they have travelled to high risk countries or regions in order to avoid financial hardship, which would increase the risk to the rest of the workforce. As we explain below, an employer’s approach to this issue must be carefully considered and the outcome may depend on the particular circumstances. Maintaining flexibility to accommodate changing circumstances is recommended. Some possible scenarios include:
Those trapped in mandated quarantine abroad. The legal position here will depend upon the terms of the staff member’s contract and any applicable local law.
Those who have returned from abroad and meet government guidance for self-quarantine, should this be given. If a staff member falls within national government guidance for self-quarantine, they should follow that guidance.
Those who have returned from abroad and do not meet government guidance for self-quarantine, should these be introduced. Some businesses are considering taking a more cautious approach to self-quarantine. For example, in countries where national governments are asking individuals to self-isolate after returning from particular areas only if they have symptoms, employers might ask them to self-isolate regardless of whether they have symptoms. This has the advantage of reducing infection risk – and thereby protecting other staff members – in comparison to strictly following national government guidance. Generally, our view is that employers who ask staff not to come to work on these preventative grounds should pay their staff in full, even if they are not able to work from home. In some jurisdictions that may be a minimum entitlement in any event.
Employers should consider carefully whether, and what, limits should be placed around any encouragement to self-isolate in excess of national government guidance, and any related pay. For example, businesses may wish to make clear that self-isolation is only encouraged (and paid) for those returning from areas that government guidance has identified as higher risk, but not elsewhere. It would be prudent to reserve an element of discretion to make ad hoc decisions as the situation changes. For instance, if a staff member returns from an area in which an outbreak developed while they were there but is not yet identified in government guidance as being a higher risk area, you may still wish to encourage self-isolation.
Businesses that are offering some form of enhanced pay during sickness or quarantine absence may wish to make it clear that staff members who book travel to an area which has been identified in government guidance as being of higher risk after that area has been identified in this way, or who travel after the relevant national agency advise against all but essential travel to that area, will be required to self-quarantine but will not (necessarily) receive any pay above their minimum legal entitlement. However, this may be resource-intensive or difficult to police in practice.
For businesses whose staff do not or cannot work from home, the above considerations may need to be taken into account alongside issues of potential cost and business continuity. Businesses should particularly bear in mind upcoming holiday periods (e.g. Eid al-Fitr and Easter are celebrated with multiple national holidays in certain parts of the world) which will most probably result in a lot of staff members travelling abroad, and the potential costs of such a policy in the event of mass absences.
It is important in all cases to clearly communicate expectations to your staff.
Some national government agencies are currently advising against travel to a small number of specific regions unless it is essential. Employers should therefore suspend all business travel to these areas unless it is essential.
Despite these limited restrictions, public concern is likely to result in staff members being less willing to travel abroad for work, especially for conferences with international attendees. Some conferences are already being suspended as a precaution. We recommend that businesses consult with staff members who are concerned about travel to other destinations about whether this travel is necessary and proportionate.
The recent news coverage of the virus is understandably causing concern among the general population. However, at this stage, the vast majority of individuals are at a low risk of infection so speaking to your staff about any concerns they have is a good first step. Where working from home is usual or technologically possible businesses may want to consent to this on an ad hoc basis, provided the individual understands that the situation may change in future. If the individual is pregnant or otherwise at a higher risk, we recommend being more accommodating about requests to work from home or take holiday.
It would be prudent to consider the approach your business would take in the case of a staff member contracting Coronavirus or being placed in quarantine preventatively. This should include:
This is a key issue to address in business continuity plans, and if you have not reviewed yours this is a good opportunity to do so. It is good practice to have plans in place which address the possibility of high levels of absence and inability to use the normal workplace (for example, if travel restrictions are put in place). At this stage we recommend businesses carry out an initial review to identify any potential areas of difficulty. We suggest this should include reviewing the following:
Employers should make sure that all staff members, particularly managers, are aware of the applicable procedures.
News reports already show that concern about the virus is leading to incidents of racist or xenophobic behaviour. Such behaviours will be detrimental to an organisation’s culture and values, and in some jurisdictions will expose the employer to claims for discrimination. As in all cases of discrimination or harassment, having a well-publicised anti-harassment and/or equal opportunities policy and mandatory training is important. This should reduce the incidences of harassment.
People spend a large amount of time at work and inevitably the messages they receive from their employer about Coronavirus will influence their feelings on the matter. There is significant value in clear communications that show your business is considering staff welfare and responding in a measured way. The virus is still at an early stage with limited reported cases outside those higher risk regions and, while being prepared is always valuable, a measured approach is advisable.
15th July 2020
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29th September 2020