Employer FAQs for Lockdown 3.0

By KMC Human Resources

20 Jan 2021

Amid the third national lockdown of the Covid-19 pandemic, many businesses across the country once again find themselves having to close their doors, either altogether for businesses forced to close or via home-working for a large number of other industries.

With some of the rules being different to the first lockdown, here we address some frequently asked questions regarding employment law.

What are the rules if an employee has symptoms of Covid-19?

If a worker that cannot work from home and is therefore required to attend the workplace has symptoms of Covid-19, they should be told to leave the workplace immediately and return home. They should be advised to seek a Covid-19 test as soon as possible. In the event of a positive test result for coronavirus, the worker must self-isolate for a minimum of 10 days.

The guidance for employers in this instance is that the workplace should remain open as normal.Where an employee has tested positive for Covid-19, other employees that have been in recent close contact with the individual concerned will be asked to self-isolate at home for 10 days from the last time they had contact with the individual and to get a Covid-19 test if they develop symptoms.

Employees that are working from home should be encouraged to follow the same protocols for reporting illness as they would if they were required to attend work.

Any worker who becomes ill with Covid-19 is entitled to statutory sick pay (SSP) or contractual sick pay in accordance with their contract of employment. Further, any employee who lives with someone who has a confirmed case of Covid-19, or has been instructed to self-isolate on the advice of a doctor or the NHS test and trace app is also entitled to SSP.

Can we put staff on furlough?

Employers can access the furlough scheme for any employee who was on their payroll from 30 October 2020 and for whom they have made a PAYE RTI submission to HMRC between 20 March 2020 and 20 October 2020. This makes it possible to access the scheme for those workers who had not been furloughed before and also captures those who may have been laid off before the scheme was extended. Written agreements or written confirmation of the agreement must be obtained from employees, which employers must retain for five years.

Can we make staff redundant?

Businesses that have suffered economic loss may need to make the difficult decision to make staff redundant. Redundancy comes with a fairly complex set of rules and depends on factors such as the number of employees affected and length of service.  If the reason for potential redundancies is directly attributable to the impact of the pandemic, employers should be cautious about implementing these whilst the furlough scheme remains available.

If the employment contract includes a temporary lay-off clause, this is another potential option. This allows employers to give notice to workers for a period of temporary lay-off.

Can a worker take time off to home-school or look after their children?

With schools across the UK closed to all children but those with essential worker parents, many parents will be left having to juggle their own working responsibilities with those of having to care for and home school their children. Given the situation, employers should be flexible with employees, allowing them to work outside of normal house should this be viable. However, some employees who cannot work from home or do not feel able to cope with both responsibilities may opt to take some time off.  One option for this is to allow employees to use some of their annual leave so they can continue to be paid in full.

Under law, employees with dependent children or caring responsibilities for an adult have the right to take unpaid dependent leave. Some employees may also be entitled to parental leave. Any request should be made by the employee in writing and it is good practice for employers to respond in writing. Employees may also wish to opt for ‘indefinite unpaid leave’ given the uncertain nature of the situation.

Employees that are eligible can ask to be placed on the furlough scheme should they not feel able to work due to child care responsibilities. It is however up to employers to decide whether to grant this request as this is not an automatic right.

Do we need to consider any special measures for staff working from home?

The law for the new lockdown is clear that employees must only attend their workplace if they cannot reasonably work from home. Employers have been told to take “every possible step” to facilitate home working, extending to providing suitable IT and equipment.

Whilst there is no specific health and safety requirement for assessments of homeworking stations if employees are working from home on a temporary basis, many employees will have now been predominantly working from home since March 2020. This arguably falls into the category forming a long-term basis, for which there is a requirement for an assessment to be carried out under the Health and Safety at Work Act 1974.  Working from kitchen tables and the like may be ok for a short time but is unlikely to be sustainable in the longer term.

Data protection is another key factor in home working and employers need to ensure they have appropriate technology and procedures in place to comply with General Data Protections Regulations (GDPR) for those employees working remotely.

Do we need a specific homeworking policy?

Those businesses that have not yet amended contracts of employment and/or Staff Handbooks, yet will have staff working from home for the foreseeable future, should look at making changes. Employers may wish to introduce a specific Coronavirus policy, and a Home Working policy. Depending on the nature of work, it may be wise to obtain specific advice in respect of what such policies should include.

The rules around the Covid-19 pandemic are under constant review and employers would be wise to check that they are following the most up-to-date guidance before taking any action. Please contact KMC Human Resources with any specific queries or to seek further advice on implementing any of the above measures.

The information in this article to correct as of 19th January 2021.

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