Coronavirus Q&A - What you need to know

Our Q&A aims to inform employers about what they need to know and how to deal with the issues raised by coronavirus, scroll down for more information on what you can do and what support there is if coronavirus is having an impact on your business. This is an extremely fluid situation with information and guidance regularly being updated. 


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Following the Budget 2021 announcement on Wednesday 3rd March, this Q&A is in the process of being updated.

For further advice, NFU Employment Service members can contact our Employment Specialists on 0370 840 0234.

Guidance and information is changing regularly, contacting our Legal Helpline will ensure that you are receiving advice on the current legal and best practice position.
 

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From 5 January 2021 different parts of the UK went into in some form of lockdown, with different rules in place for each of the devolved nations. During the initial period of lockdown people were required to stay at home, except for limited purposes and some businesses and venues have had to close. The government have published a roadmap for the easing of lockdown restrictions in England. The Welsh government have published a similar control plan for coming out of lockdown.

Some businesses may still remain closed or unable to fully re-open yet, whereas some businesses that are open will still be affected by the pandemic and unable to maintain their workforce. Please see our  Q&A on Furlough leave and the Coronavirus Job Retention Scheme ‘ for more information on furloughing employees in such circumstances.

Government guidance is still in place for people to work from home where this is possible. Where people cannot do this, they should continue to travel to work/attend their workplace. Employers must still comply with their duty to ensure the workplace is COVID-secure.

During the lockdown, those people who had previously been advised to shield because they were identified as being clinically extremely vulnerable, received a letter advising them to resume shielding. These people were advised to work from home where possible and if they cannot work from home then they should not go to work. In these circumstances the employee may be eligible for SSP. For more detail, please see ‘What is shielding?’. Both the government in England and Wales have announced that the advice on shielding will be paused as from 1 April 2021.

As the situation is changing all the time with more news and guidance it is very much a case of “watch this space”. Employers should be communicating with their workforce about what steps are being taken and ask employees to tell them if they have any symptoms or a persistent cough or fever, or loss or change to their sense of smell and/or taste, or live with someone or are in a support bubble with someone who has symptoms etc.

On 11 May 2020 the Government produced COVID-19 secure guidelines for employers to follow to help them get their businesses back up and running and workplaces operating as safely as possible. From 28 September business and organisations will face stricter rules to make their premises COVID-secure. See ‘What guidance is there on social distancing and other health and safety considerations within my business?’ for more detail on these.

ACAS have issued guidance for employers: https://www.acas.org.uk/coronavirus.

There is also NHS guidance available for anybody concerned about steps they can take to look after themselves and others:  https://www.nhs.uk/conditions/coronavirus-covid-19/, including information on the most effective and best way to wash your hands: https://www.nhs.uk/live-well/healthy-body/best-way-to-wash-your-hands/.

There is an online coronavirus hub set up by the government here: https://www.gov.uk/coronavirus where it is also possible to sign up for email alerts of any changes.

More specifically there is an area within the hub for employers and businesses: https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19 and there are workplace specific COVID-19 secure guidelines for employers to follow to help them get their businesses back up and running and workplaces operating as safely as possible: https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19.

The Welsh Government have their own webpage with information for employers in Wales: https://gov.wales/business-and-employers-coronavirus.

If self-isolation is necessary there is guidance on who should self-isolate and how to do this properly as it involves more than simply staying at home: https://www.nhs.uk/conditions/coronavirus-covid-19/self-isolation-advice/.

One of the key pieces of advice is to keep in contact with your employees no matter what reason they may be away from the workplace, so that you can keep them updated with any developments or changes affecting their employment and to offer support where you are able to do so.

If an employee is unwell at work and displays symptoms of the coronavirus they should be sent home immediately, encouraged to get tested as soon as possible and advised to use the NHS Online Coronavirus service: https://www.nhs.uk/conditions/coronavirus-covid-19/ for further advice. The NHS 111 service should only be used where support is not available online. Try to avoid them in coming into contact with others in the workplace and to avoid touching anything if they can and to use a separate bathroom to the rest of those who may be in the same workplace.

From 28 September 2020, in England people who have been instructed by NHS Test and Trace to self-isolate (including those who have tested positive for coronavirus) will be required to do so by law. New fines for those breaching self-isolation rules will start at £1,000 (the same as the penalty for breaking quarantine after international travel) but could increase to up to £10,000 for repeat offences and for ‘the most egregious breaches’. There is a legal duty upon those who are legally required to self-isolate to inform their employers of this with the start and expected end date of self-isolation. This information should be given as soon as reasonably practicable and, in any event, before they are next due to start work within the isolation period. A fixed penalty notice for £50 may be issued for any breach of this requirement. Employers who prevent or try to prevent others from self-isolating will also face the same level of fines. It is still reasonable to expect those who can, to work from home whilst self-isolating but employers must not ask, encourage or expect those who are required to self-isolate to come into the work place.

If a member of staff has helped the employee who is unwell, they do not need to go home unless they develop symptoms themselves. You should remind them to wash their hands thoroughly for 20 seconds after any contact with someone who is unwell with symptoms consistent with coronavirus.

Your normal sick pay entitlements will apply in these cases, unless the employee is able to work from home whilst they are self-isolating.

If an employee or worker has been diagnosed as having coronavirus (COVID-19) and there is reasonable evidence that it was caused by exposure at work, it must be reported as a case of disease in accordance with Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR). More information is available here.

Currently there is no guidance advising that you should automatically close the workplace where an employee has attended the workplace and is suspected or known to have the coronavirus. Employers are advised to follow cleaning guidance: https://www.gov.uk/government/collections/coronavirus-covid-19-list-of-guidance#guidance-for-non-clinical-settings

Employers should call the Self-Isolation Service Hub on 020 3743 6715 as soon as they are made aware that any of their workers have tested positive.

Employers will need to provide the 8-digit NHS Test and Trace Account ID (sometimes referred to as a CTAS number) of the person who tested positive, alongside the names of co-workers identified as close contacts. This will ensure that all workplace contacts are registered with NHS Test and Trace and can receive the necessary public health advice, including the support available to help people to self-isolate.

If there is an outbreak of COVID-19 within the workplace, employers should notify the local public health protection team for further advice.  The heath protection team will undertake a risk assessment, provide public health advice, and where necessary, establish a multi-agency incident management team to manage the outbreak. Details of how you can find your local health protection team in England are here, and in Wales are here.

Unless any of the employee’s colleagues have been advised by the NHS Test and Trace or Test, Trace, Protect service to self-isolate, they should continue working but they:

  • must avoid individuals who are at high-risk of contracting COVID-19, for example, because they have pre-existing medical conditions, such as respiratory issues
  • must take extra care in practising social distancing and good hygiene and in watching out for symptoms

If they are then later advised to self-isolate by NHS Test and Trace or Test, Trace, Protect, they should follow the advice given to them. For more information on this please see – ‘What happens if any of my workers are contacted by the NHS Test and Trace service?’.

If any of the employee’s colleagues start to display symptoms of coronavirus, they should self-isolate and get tested. For more information on this please see – ‘What to do and what to pay if an employee is advised to self-isolate?’.

The Government have produced a new framework setting out how national and local partners will work with the public at a local level to prevent, contain and manage outbreaks. This national framework will support local decision-makers by clarifying their responsibilities and empowering them to take preventative action and make strong decisions locally, supported by mechanisms that safeguard key national assets and interests.

  • If they have symptoms of coronavirus – see ‘What to do and what to pay if an employee is advised to self-isolate?
  • If they are:
  • waiting to have a test, or
  • waiting for the results of a test, or
  • have tested positive for coronavirus – see ‘What to do and what to pay if an employee is advised to self-isolate?
  • If someone they live with, or share a support bubble with:
  • has symptoms of coronavirus, or
  • is waiting for a test, or
  • is waiting for the results of a test, or
  • has tested positive for coronavirus – see ‘What to do and what to pay if an employee is advised to self-isolate?’
  • If they are a UK resident or visitor to the UK and have arrived in the UK from 8 June 2020 onwards, unless they are covered by an exemption or have arrived from one of the countries with travel corridor exemption from 10 July 2020 onwards – see ‘Will any of my existing or new workers have to self-isolate when they arrive or return to the UK?
  • If they have been contacted by NHS Test and Trace/Test, Trace and Protect – see ‘What happens if any of my workers are contacted by the NHS Test and Trace or Test, Trace, Protect service?
  • If they are self-isolating on or after 26 August 2020 because they have been advised to by a doctor or healthcare professional before going into hospital for surgery.

There is a guidance on the NHS website about how long and when a person needs to self-isolate where they have been tested and what to do when a test comes back positive, negative or inconclusive, as a negative test does not always mean that the self-isolation can immediately end.

In England only, from 28 May 2020 a new NHS Test and Trace service was launched. NHS Wales launched their own similar version, called NHS Wales Test, Trace, Protect on 1 June 2020.

Both services provide testing for anyone who has symptoms of coronavirus to find out if they have the virus and then gets in touch with anyone who has had a positive test result to help them share information about any close recent contacts they have had. The service will then alert those contacts, where necessary, and notify them they need to self-isolate to help stop the spread of the virus.

There is specific guidance for employers in England here and in Wales here.

From 28 September 2020, in England people who have been instructed by NHS Test and Trace to self-isolate (including those who have tested positive for coronavirus) will be required to do so by law. New fines for those breaching self-isolation rules will start at £1,000 (the same as the penalty for breaking quarantine after international travel) but could increase to up to £10,000 for repeat offences and for ‘the most egregious breaches’. There is a legal duty upon those who are legally required to self-isolate to inform their employers of this with the start and expected end date of self-isolation. This information should be given as soon as reasonably practicable and, in any event, before they are next due to start work within the isolation period. A fixed penalty notice for £50 may be issued for any breach of this requirement. Employers who prevent or try to prevent others from self-isolating will also face the same level of fines. Employers should support workers who need to self-isolate and must not ask them to attend the workplace. Employers should continue to communicate with workers in self-isolation. Working from home if they remain well and if it is practicable to do so should be considered and encouraged.

If people can’t work from home, employers should consider what sick pay may be due, for more information please see – ‘What to do and what to pay if an employee is advised to self-isolate?’.

Alternatively, an employee may wish to use some of their annual leave to cover their period of absence.

Both services will follow up with people who need to self-isolate because they have had close recent contact with someone, who might be a colleague, who has tested positive for coronavirus.

When someone first develops symptoms and orders a test, they will be encouraged to alert the people that they have had close contact with in the 48 hours before symptoms onset. If any of those close contacts are co-workers, the person who has developed symptoms may wish to (but is not obliged to) ask their employer to alert those co-workers. At this stage, those close contacts should not self-isolate, but they:

  • must avoid individuals who are at high-risk of contracting COVID-19, for example, because they have pre-existing medical conditions, such as respiratory issues
  • must take extra care in practising social distancing and good hygiene and in watching out for symptoms

If the person who has symptoms has a positive test result for COVID-19, the NHS service will ask them to share information about their close recent contacts.

Any non-household contacts who need to self-isolate will be contacted by the NHS service. They will receive a formal notification (either a phone call, letter, email or text message) setting out how long they need to self-isolate for.

The NHS service will provide a notification that can be used as evidence by workers to inform their employer that they have been told to self-isolate. Employers will need this evidence if they are going to claim a rebate for Statutory Sick Pay.

In most cases the period of self-isolation for those in England will be for 10 full days from the point of most recent contact with the person who has tested positive for coronavirus. The isolation period includes the date of last contact with the person who has tested positive and the next 10 full days.

In some circumstances, the NHS service will ask the person who has tested positive to take a follow-up COVID-19 test. If this second test result is negative, they will be able to end their self-isolation. If this happens the NHS service will contact any close contacts who had started to self-isolate to let them know that they can now stop – they must not stop self-isolating until they have been specifically advised that they can do so by the NHS service.

Those who are notified as being a close contact will be able to have a PCR test during their 10-day self-isolation period. The purpose of the test is to help identify if the close contact has contracted the virus themselves but not displaying symptoms and to attempt to break the chains of transmission. The full 10-day period will need to be completed even if there is a negative PCR test.

If it is likely that it is working with others which has triggered these notifications, employers should consider what further actions could be taken to reduce the risk of COVID-19 and review what steps they have taken in making the workplace COVID-19 secure. For further information on this please see – ‘'COVID-secure' What you need to know.

Workers should only self-isolate where:

  • they have any symptoms of coronavirus (a high temperature, a new, continuous cough or a loss or change to sense of smell or taste)
  • they're waiting for a coronavirus test result
  • they've tested positive for coronavirus
  • they live with someone or are in a support bubble with someone who has symptoms, is waiting for a test result or has tested positive
  • they have been notified by the NHS service that they have come into contact with someone who has coronavirus.
  • they are a UK resident or visitor to the UK and have arrived in the UK from 8 June 2020 onwards, unless they are covered by an exemption or have arrived from one of the countries with travel corridor exemption from 10 July 2020 onwards
  • they have been advised to by a doctor or healthcare professional before going into hospital for surgery.

There is no need for workers to self-isolate where they believe they have come into contact with someone who has coronavirus, unless any one of the above points applies.

Designated venues must display an official NHS QR code poster to enable customers and visitors to scan the NHS QR code when they arrive by using the NHS COVID-19 app. The information stays on the user’s phone. As you are likely to already have a record of your employees and staff, they do not need to scan the NHS QR code. However, staff can scan the QR code, in addition, if they wish. As everyone over the age of 16 is being encouraged to download and use the app, employers are also advised by the Department of Health and Social Care to facilitate and support employee use of the app within their workplaces wherever possible, although use of the app is not mandatory. More information on NHS Test and Trace within the workplace is available here.

In England and Wales, anybody showing symptoms of coronavirus can be tested by making a request through the NHS website. People should not request a test ‘just in case’. Tests should only be requested where somebody has symptoms or they have been asked to get a test eg before going into hospital for surgery, or by the local council, or when taking part in a government pilot project. Where a person has symptoms, they will be given a PCR test which is then tested in a lab.

Local authorities in England are being encouraged by the Department of Health and Social Care, to offer asymptomatic testing in the community and to target those who are unable to work from home. These tests are usually Lateral Flow Device (LFD tests) which are simple and quick to use but are not always as accurate as a PCR test. For more information on how this may help you and your workforce, contact your local authority to see if they are offering this service.

Government funded lateral flow tests for asymptomatic workers are available forall businesses in England so that they may test their employees twice a week in the workplace. From 12 April 2021, businesses with 10 or more employees and who are unable to provide workplace testing, will be able to order tests for their employees to collect from the workplace and use at home twice a week. Businesses must register by 12 April 2021 and the free tests will be available until 30 June 2021.

A campaign was launched by the Department of Health and Social Care at the beginning of April 2021 to encourage the public to get tested twice a week with a variety of options for obtaining free tests to take at home. More information on this is available online.

For some employers there will be a duty to take reasonable steps to facilitate employees to take COVID-19 tests, please see ‘What duty is there on employers to facilitate the testing of employees?’ for more information on this.

For more information on COVID-19 testing in the workplace and the implications this may have for employers, please see our separate Q&A: COVID-19 testing and vaccinations in the workplace.

Essential workers who are showing symptoms of coronavirus will be prioritised for PCR testing through the NHS. This will help in providing reassurance of knowing whether symptoms are caused by coronavirus and help workers to decide whether they are well enough to return to work. Anybody with symptoms should book a test online.

The important point about the testing being done at this stage is that it will only identify whether the individual has COVID-19 at the moment; it will not say whether they have had COVID-19 already and are now recovered, or whether they have any antibodies or immunity. Antibody testing is not yet widely available and home antibody tests are not currently recommended.

The list of essential workers on the website includes critical personnel in the production and distribution of food, drink and essential goods, including:

  • those involved in food production, processing, distribution, sale and delivery.
  • those critical to the provision of other essential goods, such as medical supply chain and distribution workers, including veterinary medicine.
  • workers critical to the continuity of essential movement of goods.

The full list and details of what is an essential worker for England can be seen here and for Wales can be seen here.

Testing is not compulsory for anybody, and employers don’t have the automatic right to insist that their employees are tested, or that employees who have been tested share their results with their employer. An employer may be able to argue that being tested and a requirement to share results is a reasonable instruction from a health and safety perspective, and any unreasonable failure to follow that instruction could be a misconduct matter. This in turn may result in disciplinary action but investigation of the facts will be essential, including why the employee refused. In many cases it is not likely to amount to gross misconduct but if an employer is considering any disciplinary action, including dismissal, they should seek advice from CallFirst in the first instance.

If an employee shares their test results with their employer this could be classed as data relating to their health and would constitute special category data. This type of data is personal data that needs more protection because it is sensitive. In order to lawfully process special category data, you must identify both a lawful basis under Article 6 of the GDPR and a separate condition for processing under Article 9. Employers will need to ensure that this is covered by their privacy notices and that a data protection impact assessment has been completed. For more detail on this please see specific employer guidance from the ICO concerning workplace testing: https://ico.org.uk/global/data-protection-and-coronavirus-information-hub/data-protection-and-coronavirus/workplace-testing-guidance-for-employers/.

The NHS Test and Trace service is for those who display symptoms of COVID-19 or who have been advised to take a test by a medical practitioner or public service. Employers wishing to provide a test to staff must not advise individuals without symptoms to get a test from the limited supply offered by the NHS, but may offer alternative private provision, in accordance with the latest guidance. If you are contemplating arranging your own testing for your employees, whether they have symptoms or not, you are strongly advised to read and follow all of the published guidance.

Your local authority may also be offering community testing for asymptomatic people, particularly those who are unable to work from home. Contact your local authority for more information.

The guidance currently applies to England only and there is a workplace testing framework applicable to Wales.

Government funded lateral flow tests for asymptomatic workers are available until 30 June 2021 for the businesses in England that have registered for the service by 12 April 2021so that they may test their employees twice a week in the workplace. From 12 April 2021, businesses with 10 or more employees and who are unable to provide workplace testing, will be able to order tests for their employees to collect from the workplace and use at home twice a week. More information on how to register for the free tests is available here. Employers who have missed this deadline will either need to pay an approved provider to provide tests or run a test site for them or employers will need to refer their employees to seek their own free LFD test via the NHS, although an employer should not make this compulsory on the employee.

For some employers there will be a duty to take reasonable steps to facilitate employees to take COVID-19 tests, please see ‘What duty is there on employers to facilitate the testing of employees?’ for more information on this.

For more information on COVID-19 testing in the workplace and the implications this may have for employers, please see our separate Q&A: COVID-19 testing and vaccinations in the workplace.

If you are an employer that fulfils the following definition, then you must take reasonable steps to facilitate the taking of tests by your employees:

  • you employ more than 50 employees, of which some or all are required to take workforce tests, including agency workers you are responsible for.
  • your employees are required to complete testing after international travel.

As an employer your ‘reasonable steps’ to facilitate the taking of tests for the 10 days after the employee arrives, may include:

Employers should strongly encourage their employees to complete the bespoke testing regimes but are not required to monitor that their employees are completing the test. Employers should remember that seasonal edible horticulture workers should not leave the farm during the first 10 days and ensure these workers are supported to access testing without having to leave the farm.

For more information on COVID-19 testing in the workplace and the implications this may have for employers, please see our separate Q&A: COVID-19 testing and vaccinations in the workplace.

This is subject to any national or local lockdown, regional or tier restriction in place at the time and will override the following:

These rules only apply to social gatherings and do not affect the number of people who may attend the workplace or attend work related meetings, although you should still ensure the workplace is COVID-secure. Please see our ‘COVID-secure – What you need to know’ Q&A for further information. If you operate a business where the public can attend in groups, you must ensure there are measures in place to comply with these rules and you should not allow or encourage groups which exceed the limit.

If there are no alternatives such as home working or agreeing to take holiday or giving advance notice of holiday, and you tell your employees not to attend work as a precaution even though there may be work available, then they will be entitled to their full pay for the period of closure. In some very limited cases there may be an express right in their contract of employment to send employees home without pay but this will depend upon the exact wording in the contract, so it is essential that you take advice from the Helpline before deciding not to give full pay.

This should be treated the same as any other work shortage and you should look at whether you have the right to implement short term solutions such as lay off or short time working or more longer-term plans such as redundancy. The Helpline can provide advice and there is detail on our website concerning redundancies.

You could also consider making use of holiday, either by agreement or by giving advance notice where this is possible. Employers have the right to require employees and workers to take annual leave at a specific time, so long as they have given twice as much notice as the amount of leave they want them to take. Agreed flexible working may also help matters.

For more information about whether you operate a business which the Government have forced to close please see https://www.gov.uk/government/publications/further-businesses-and-premises-to-close.

The Government have announced a new Coronavirus Job Retention Scheme (CJRS) where employers can agree with their employees to change their work status to a furloughed worker and the Government will provide financial support for employers who do this. The CJRS is designed to help employers whose operations have been severely affected by coronavirus to retain their employees and protect the UK economy. The government recognises different businesses will face different impacts from coronavirus and therefore all employers are eligible to claim under the scheme. Furlough is a new concept in UK employment law but it means the employee is on a period of leave. Initially the scheme was expected to last for three months from 1 March 2020 but was extended until the end of June 2020. On 12 May 2020 the Chancellor announced a further extension of the current CJRS until 31 July 2020. From 1 August 2020 the CJRS will continue until 31 October 2020 but with amendments so that employers have to contribute to the furloughed employees’ wages, which will be still subject to 80% of their normal wages, capped at £2500 per month. Employers have been able to furlough eligible employees on a part time basis from 1 July 2020.

The online portal for making CJRS claims went live on 20 April 2020. Unless there is an express lay off clause within the contract your employee would need to agree to change their status which must then be documented in writing with detail of how this impacts the rest of their contractual entitlements. During this time and up until 30 June 2020 the employee would not be able to do any work for you.

Following the announcement on 31 October by the Prime Minister that England would be returning to a national lockdown on 5 November 2020 until 2 December 2020, it was decided that the CJRS would be extended until December 2020 and that the Job Support Scheme would not be introduced until the CJRS has ended. Since then the CJRS has been further extended until 30 September 2021.

Please see our  ‘Furlough Q&A - The Coronavirus Job Retention Scheme’ for more detail about furlough and the CJRS.

On 8 July 2020, the Chancellor announced the introduction of the Job Retention Bonus (JRB) as part of his ‘Plans for Jobs’.

This is a one-off payment of £1,000 to employers that have used the Coronavirus Job Retention Scheme (CJRS) for each furloughed employee who remains continuously employed until 31‌‌‌ ‌January 2021.

The intention was for employers to claim the bonus from 15 February 2021 once accurate RTI data to 31‌‌‌ ‌January has been received, but it was announced on 5 November that the JRB will not be paid in February and a retention incentive will be deployed at the appropriate time. The purpose of the JRB was to encourage employers to keep people in work until the end of January. However, as the CJRS is now being extended to 30 September 2021, the policy intent of the JRB no longer applies.

The Job Support Scheme is designed to protect viable jobs in businesses who are facing lower demand over the winter months due to Covid-19, to help keep their employees attached to the workforce. The scheme was due to open on 1 November 2020 and run for 6 months but following the extension of the CJRS it will be introduced when the extended CJRS ends.

It is separate from the CJRS and it will have no impact if employers have claimed from the CJRS or not previously.

The JSS provides different types of support to these businesses so they can get the right assistance, at the right time, according to their situation. Businesses that are operating but facing decreased demand can get support for wages through JSS Open. Those businesses that are legally required to close their premises as a direct result of coronavirus restrictions set by the governments can get the support they need through JSS Closed, this was previously referred to as the expanded Job Support Scheme.

To be eligible for a claim under the JSS Open, the employee must work a minimum of 20% of their usual hours and the employer will continue to pay its employee for time worked, but the cost of hours not worked will be split between the employer, the Government (through wage support) and the employee (through a wage reduction), and the employee will keep their job.

The JSS Closed will pay two thirds of eligible employees’ usual wages, up to a maximum of £2,083.33 per employee per month. Employers are not required to contribute towards wages but are required to cover employer National Insurance and pension contributions.

HMRC produced guidance the day before it was announced that the scheme was being delayed due to the extension of the CJRS. The guidance has since been withdrawn.

For more information on the JSS Open and JSS Closed, please see our Job Support Scheme Q&A.

At the start of lockdown, an issue that was raised regarding workforce was around the apparent need to close workplace canteens, creating a risk that workers might leave their workplaces and go to food shops to buy food, with a greater potential to spread the virus. Lobbying on this front has generated a refinement of the government’s position. The guidance at the time stated: 

“Where there are no practical alternatives, other workplace canteens can remain open to provide food for their staff and/or provide a space for breaks. However, where possible, staff should be encouraged to bring their own food, and distributors should move to takeaway. Measures should be taken to minimise the number of people in the canteen at any one given time, for example by using a rota.”

Employers should still take account of this guidance when considering what facilities they are able to offer to their employees regardless if there is a national lockdown or other local restrictions in place. Proper precautions will be essential as indicated to ensure that the risk of spreading COVID 19 is properly managed.

Measures are being announced regularly and more detail from the government can be found on support for business and self-employed people during coronavirus.

HMRC have published guidance on how employers will be able to recover coronavirus-related SSP through the Coronavirus Statutory Sick Pay Rebate Scheme (‘the scheme’).  From 26 May 2020, employers will be able to submit their claim online .

The scheme can be used by employers if they:

  • are claiming for an employee who’s eligible for sick pay due to coronavirus
  • had a PAYE payroll scheme that was created and started on or before 28 February 2020
  • had fewer than 250 employees on 28 February 2020 – this will include any type of employee

The scheme will only repay employers the rate of SSP paid  (no sick pay top up is reimbursed) to current or former employees for periods of sickness starting on or after 13 March 2020 for employees who had coronavirus (or the symptoms) or are self-isolating because someone they live with has symptoms or they have been advised to by the NHS service because they have come into contact with someone who has tested positive. For employees who are shielding because of coronavirus, employers can claim for absences which started on or after 16 April 2020. From 1 August 2020, in England only, and from 16 August 2020 in Wales, those who had previously been advised to shield will no longer need to do so. Where they are unable to work from home, they can return to their workplace, so long as it is COVID-secure. This will mean that from 1 August 2020 in England and 16 August 2020 in Wales, these employees will no longer be eligible for SSP solely due to shielding. In some areas where there are local restrictions in force or a national lockdown is imposed, the pause on shielding may be lifted and the government will write to those in the area who are deemed to be clinically extremely vulnerable and advise them to stay at home and shield.

Up to a maximum of 2 weeks can be reclaimed from the first day of sickness where an employee is unable to work because they either:

  • have coronavirus symptoms
  • cannot work because they are self-isolating at home (including when they have been notified by the NHS Test and Trace or Test, Trace, Protect service to self-isolate)
  • are shielding and have a letter from the NHS or a GP telling them to stay at home for at least 12 weeks
  • have been notified by the NHS to self-isolate before surgery for up to 14 days. Although SSP is still likely to be payable for the day of surgery, employers cannot recover the SSP paid for this day or any other days when the absence is not due to coronavirus.

The 2 weeks maximum per employee applies regardless of how many days they are off sick or self-isolating and regardless of how many separate occasions there are. This limit only applies to what an employer may reclaim, it is not in relation to what SSP entitlement an employee may have. Where the 2 weeks maximum has been exhausted any continuing or further SSP costs will have to be met by the employer.

Waiting days for coronavirus related SSP have been abolished, although there must still be a period of incapacity for work, this is any period of four or more consecutive days, each of which is a 'day of incapacity for work'. For more information see ‘What to do and what to pay if an employee is advised to self-isolate?’

The maximum amount you can claim from the Coronavirus Statutory Sick Pay Rebate Scheme whilst it is live is limited to a total of £191.70 multiplied by the number of employees enrolled by you in PAYE on 28 February 2020.

Employers can claim back from both the Coronavirus Job Retention Scheme and the Coronavirus Statutory Sick Pay Rebate Scheme for the same employee but not for the same period of time for that employee.

An employer’s claim amount should not take them above the state aid limits under the EU Commission temporary framework. The maximum level of state aid that a business may receive is €800,000. There is a lower maximum for agriculture at €100,000 and aquaculture and fisheries at €120,000.

To make a claim employers will need:

  • their Government Gateway ID to make an online claim
  • their PAYE scheme reference number
  • their contact details
  • details of their UK bank or building society (this must be one which accepts a BACS payment)
  • the total amount of coronavirus SSP that has been paid to employees for the claim period
  • the number of employees being claimed for
  • the start and end date of the claim period (the start date of the claim is the start date of the earliest pay period being claimed, the end date of the claim is the end date of the most recent pay period claimed for, as claims can only be made for SSP paid in arrears).

Employers can claim for multiple pay periods and employees at the same time. HMRC are writing to those employers who are unable to claim online with details of alternative arrangements for submitting their claim. If you have queries about this you should contact HMRC.

Once a claim has been made and then checked by HMRC, the monies will be paid into the employer’s account within 6 working days. 

In order to reclaim the SSP, employers will need to keep records for at least 3 years from the date of the claim showing:

  • the reason why an employee could not work
  • details of each period when an employee could not work, including start and end dates
  • details of the SSP qualifying days when an employee could not work
  • National Insurance numbers of the employees who you are claiming for

You’ll need to print or save your state aid declaration (from your claim summary) and keep this until 31 December 2024.

HMRC will have powers to recover any over or fraudulent payments made to employers. Penalties of up to £3000 can be imposed where HMRC find that employers have knowingly and deliberately provided false or misleading information to benefit from a claim.

Normally annual leave must be taken in the holiday year in which it has been accrued with no right to carry it forward to another year, subject to limited exceptions such as sick leave or family friendly leave. Due to the impact of the coronavirus on employers the Government has amended legislation so that all workers who have not been able to take all of their annual leave due to the coronavirus pandemic, will be able to carry up to 4 weeks of leave over into the next two leave years. The Working Time (Coronavirus) (Amendment) Regulations 2020 will allow this carry forward where it is not reasonably practicable for a worker to take some or all of their leave due to coronavirus. It is already possible to carry forward 1.6 weeks’ worth of leave into the following leave year by agreement and this remains unchanged by the new regulations.

Bank holidays can be included in the 4 weeks carried forward. If an employee leaves employment during the two years where leave has been carried forward they will be entitled to receive a payment in lieu of the balance of leave owing.

The Government has produced a new online guide: Holiday entitlement and pay during coronavirus (COVID-19) which gives an explanation of how holiday entitlement and pay operate during the coronavirus pandemic and where it differs from the standard holiday entitlement and pay guidance, including how furloughed employees may be affected.

If your employees are furloughed it will be possible for them to take annual leave during this time. For more detail on this please see our separate guide on furlough leave.

If a job offer has been made by you and accepted by the new employee there will be a valid contract made, subject to the terms of the letter, including if the offer has been conditionally made. In these circumstances there would be no right to withdraw the offer and if your circumstances have changed and you are no longer in a position to take on any new workers then you will need to give notice to end the contract otherwise there would be a risk of breach of contract claim. It’s likely that the value of such a claim would be limited to the notice period which would have been needed to have been given to end the contract.

How much notice or payment in lieu of notice you will need to give will depend on what has been agreed as part of the offer. Where there are no express contractual notice provisions it may be implied that reasonable notice should be given, to avoid the risk of a claim.

In some cases a job offer may have been made and accepted but no start date yet agreed. Here it might be appropriate to try to and agree to set a start date later on in the year. Where you are able to do this, make sure it is documented and clear that they will not be eligible for any payment or other benefits of their contract of employment until they start work for you.

Where a start date has been agreed it may also be possible to negotiate a later starting date, and again where this is agreed ensure it is documented and clear that they will not be eligible for any payment or other benefits of their contract of employment until they start work for you.

You will not be able to designate these future employees as furlough workers and claim on the CJRS scheme as they will not have been on your payroll from 19 March 2020.

If a job offer has not been accepted then it will usually be safe to withdraw so long as this would not be in breach of any conditions of the offer, such as the offer being available for a set period of time.

When withdrawing a job offer or agreeing on new start date or other points relevant to the offer it will be best practice to give your reasons as relating to coronavirus in order to avoid any discrimination claims.

Where there is no relevant travel corridor, there are exemptions for certain workers which include seasonal agricultural workers who have an offer of employment for seasonal work to carry out specific activities in edible horticulture on a named farm. It is important to note that this particular exemption does not extend to any other areas of farm work and is specifically in relation to seasonal workers, therefore not covering your existing permanent workers. This exemption applies in England and Wales.

Details on this exemption are available here and there is also specific guidance for workers and employers here. The legislation has defined specific activities as:

  • crop maintenance,
  • crop harvesting,
  • tunnel construction and dismantling,
  • irrigation installation and maintaining,
  • crop husbandry,
  • packing and processing of crops on employers’ premises,
  • preparing and dismantling growing areas and media,
  • general primary production work in edible horticulture,
  • activities relating to supervising teams of horticulture workers.

The exemption is not available for anybody who has been in a high-risk ‘red list’ country in the previous 10 days. These people will need to quarantine in a government approved hotel for 10 days and take a coronavirus test on day 2 and 8.

Anybody intending to rely on the exemption will need to provide in advance their contact details including where they are staying. It is important therefore, that you ensure you have given the full and correct address of the farm to the worker prior to their arrival in the UK.

These workers will still need to complete the passenger locator form and have proof that they have a negative coronavirus test taken in the 3 days before they travel to the UK. Workers who arrive the UK on or before 5 April 2021 are exempt from taking a coronavirus test on day 2 and 8 after arrival in the UK, but if they should develop any symptoms, they must follow the guidance on self-isolation and getting tested.

Workers arriving in the UK from 6 April 2021 will need to comply with the new system of testing for professions exempt from the normal quarantine rules. Seasonal workers in edible horticulture will need to take a test on days, 2, 5 and 8. They do not need to use a particular private test provider as they can be tested through the employer’s workplace testing programme (where available), community testing programmes, or at home by collecting lateral flow self-test kits from community sites, or where they are unable to collect a test they can be ordered online or by calling 119. As these tests are not booked in advance, no reference is needed for the passenger locator form. If an individual tests positive with a lateral flow test, they will be required to take a confirmatory PCR test. The individual will be required to self-isolate for 10 days from the day after the test was taken, as will anyone else in their household. If the PCR test is taken within 2 days of the LFD test and there is a negative result, the employee and the cohort group/household can stop self-isolating. Anyone coming into the UK and found to not be complying with the new testing requirements could face fines of up to £2,000.

In these cases, employers have a duty to take reasonable steps to facilitate employees taking COVID-19 tests, please see ‘What duty is there on employers to facilitate the testing of employees?’ for more information on this. Free LFD test kits are available until 30 June 2021 for employers who registered for them before the deadline on 12 April 2021. Employers who have missed this deadline will either need to pay an approved provider to provide tests or run a test site for them or employers may refer their employees to seek their own free LFD test via the NHS

Workers will also need documentary evidence to prove they have travelled to the UK to carry out seasonal agricultural work at your farm. You will, therefore, need to ensure that you have provided this either by letter or email prior to the start of their journey. We have a template letter for employers in England to use and a separate template letter for employers in Wales to use. Both of these templates are only suitable to use where your workers are from the EU and they fall within the full seasonal worker exemption.  They are not suitable for use if your workers are from outside of the EU.

When the worker arrives in the UK they must go straight to the farm and somebody from the farm should collect them from the airport, port or station wherever possible.

Within 2 hours of workers arriving at the farm, you should give them:

They can start work immediately but they must self-isolate on the farm for the first full 10 days and must live on the farm. They are allowed to mix with fellow workers but can only leave the farm for very limited purposes. There is guidance available for those who are self-isolating when they have travelled to the UK. However, anybody who is exempt will still need to follow the same rules on social distancing and staying at home where possible. If any of these workers develop symptoms of coronavirus or live with a person who has developed symptoms of coronavirus, they should follow the guidance on self-isolating.

For more detail on the health and safety steps you should take, please see 'COVID-secure' What you need to know.

If these workers wish to come out of self-isolation early and be allowed to leave the farm before the 10 days are complete, they can, where they are eligible to do so, pay to take part in the Test to Release Scheme. There is no statutory obligation on an employer to pay for or contribute towards these costs. In some cases, an employer may choose to pay for or make a contribution towards such costs, and where you are considering anything like this, it is important that you speak to one of our Specialist Advisers at CallFirst for more information before you take any further action. More detail on the scheme can be found in ‘Will any of my existing or new workers have to self-isolate when they arrive or return to the UK, or take a coronavirus test before or after they arrive?

If any of your migrant workers require information (including translated information) on any health entitlements, including access to COVID-19 tests, vaccines etc you can refer them to online resources here and here.

The government is now carrying out public health self-isolation compliance checks on individuals who have a legal duty to self-isolate for 10 days following international travel. More information on what to expect from a compliance check is available online.

Seasonal poultry workers exemption:

Seasonal workers coming to England from 17 November 2020 to carry out specific activities in poultry processing on a named farm or processing site were subject to different rules on the requirement to self-isolate upon their arrival in England. However, to rely on this exemption they needed to have left England before 31 December 2020 so therefore this exemption is no longer applicable.

Any other seasonal workers:

Currently there are no other applicable exemptions for other types of seasonal workers. Please see ‘Will any of my existing or new workers have to self-isolate when they arrive or return to the UK, or take a coronavirus test before or after they arrive?for more information on what testing and quarantine requirements there are for these workers.

The general position on self-isolation:

All travel corridors have been suspended from 4am 18 January 2021 until further notice. All international arrivals will still need to complete a passenger locator form and to self-isolate for 10 days, unless they are exempt or they take part in the Test to Release scheme (only applicable in England).

There is a ‘red list’ of countries from which travel to the UK is banned. Only British and Irish Nationals, or third country nationals with residence rights in the UK will be able to enter the UK if they have been in or travelled through any of the countries on the travel ban list in the previous 10 days. They must self-isolate for 10 days on arrival. They cannot use the Test to Release scheme. From 15 February 2021 anyone travelling to England or Wales from a country on the travel ban list (red list) will be required to quarantine in a government-approved facility for a period of 10 days, unless they have an exemption. For more information on this please see Booking and staying in a quarantine hotel when you arrive in England and Border rules for people travelling to and from Wales: coronavirus (COVID-19).

From 8 June 2020 new rules require all new international arrivals to self-isolate for a period of up to 10 full days, unless they are on a shortlist of exemptions or are arriving from one of the countries with travel corridor exemption from 10 July 2020 onwards (see below for more information). This therefore includes new foreign workers and your existing workers who have travelled abroad for any reason and are returning to the UK.   

The 10 day period starts from the day after the traveller leaves a country which is not on the travel corridor list. More information on this and how to self-isolate upon arrival is available here. However, from 15 December 2020 the 10-day period may be reduced for passengers arriving into England who comply with the ‘Test to Release’ strategy. Please see further on within this section for more details.

The government is now carrying out public health self-isolation compliance checks on individuals who have a legal duty to self-isolate for 10 days following international travel. More information on what to expect from a compliance check is available online.

All international arrivals are required to supply their contact and accommodation information by completing a passenger locator form before their arrival to any nation in the UK and this must be presented on arrival to the UK, unless they have an exemption. Anybody refusing to supply these details may be fined (and in England could also be imprisoned for up to 10 years), and non-British nationals may not be allowed into the UK. Any of these international arrivals (including returning UK residents) not on a short list of exemptions, in England or Wales will be required to self-isolate in their accommodation for up to ten full days on arrival into the UK. Where international travellers are unable to demonstrate where they would self-isolate, they will be required to do so in accommodation arranged by the Government. Anybody refusing to comply with the self-isolation requirements may be fined.

All journeys within the Common Travel Area will also be exempt from these measures. The measures and list of exemptions will be kept under regular review. It is possible to sign up for email alerts concerning any changes to the travel corridor lists in England here.

Travel Corridors

All travel corridors have been suspended from 4am 18 January 2021 until further notice. All international arrivals will still need to complete a passenger locator form and to self-isolate for 10 days, unless they are exempt or they take part in the Test to Release scheme (only applicable in England).

From 10 July 2020, new arrivals (UK residents and international visitors) will not have to self-isolate when they arrive in England or Wales, if they:

This applies to all travel by train, ferry, coach, air or any other route.  The list of travel corridors will be kept under review and it is essential that the up to date list is used when checking if there is a travel corridor in place for the day of arrival into the UK.

If they have been to or stopped in a country that’s not on the travel corridors exemption list they will have to self-isolate until 10 days have passed since they left that country, unless they fall within one of the exemptions.

This includes situations where travellers have arrived into any nation in the UK and then travelled to another nation within the UK as their final destination. The devolved nations are responsible for setting their own travel corridors and there may differences between each list. Travellers will not be able to avoid self-isolation by arriving into one of those nations in the UK where their departure country was on that nation’s travel corridor list, if it is not on the travel corridor list of their final destination ie where they live or are travelling to. For example, a person travelling to England from a country that it not on the English travel corridor list will still need to self-isolate when they get to their final destination in England if they land/arrive in Wales/Scotland/Northern Ireland, regardless of the travel corridor list of the nation where they first arrived/landed.

Test to Release

All travel corridors have been suspended from 4am 18 January 2021 until further notice. All international arrivals will still need to complete a passenger locator form and to self-isolate for 10 days, unless they are exempt or they take part in the Test to Release scheme (only applicable in England).

Passengers arriving into England from countries not featured on the government’s travel corridor list from 15 December 2020 may be able to reduce mandatory self-isolation, if they take an optional coronavirus (COVID-19) test at least five days after they have left a destination not on the travel corridor list. Self-isolation will need to continue until the test results are obtained. If the test is negative, they will no longer need to continue self-isolating until the end of the 10 day  period.

If the test result is positive, they must continue to self-isolate for a further 10 full days. People in the same household or support bubble must also then self-isolate for 10 full days. The isolation period includes the date the test was taken or any symptoms started and the next 10 full days.

If test is inconclusive the passenger must continue to self-isolate but they may choose to take another privately provided test.

If they should develop symptoms after a negative test, they must follow the usual guidance on self-isolation and seek out an NHS test and trace test as soon as possible, even if they have recently received a negative result from a private test. If the NHS test is positive they must continue to self-isolate for 10 full days. The isolation period includes the date the symptoms started and the next 10 full days.

Those who choose to opt into the scheme will have to book and pay for a test from a private provider on the GOV.UK list, they will not be eligible to use the NHS Test and Trace for this type of test, unless they have coronavirus symptoms. Tests provided by the NHS Test & Trace will not allow a passenger to shorten their isolation period. Passengers who have used the NHS Test and Trace because they have coronavirus symptoms, must continue to self-isolate if the result from an NHS Test & Trace test is negative. They may be fined if they use a negative NHS test result to try to end their self-isolation period early, only a negative test that has been paid for under the Test to Release scheme can be used to end the self-isolation period earlier than 10 days.

The private test will need to be booked before travel to England. Upon arrival in England passengers will still need to complete a passenger locator form where they can choose to opt into the scheme and self-isolate for 5 days before the test can be taken. If the test is not booked until after arrival in England, a new passenger locator form will need to be completed.

Passengers who choose not to take the optional test and have no other exemption applicable to them, will need to self-isolate as usual for 10 days.

The scheme details can be found here.

Existing employees:

From 8 June 2020, employers will need to ensure that as well as any new starters, any existing employees returning from work or annual leave abroad comply with the self-isolation requirements, unless they are travelling from one of the countries on the travel corridors exemption list or are exempt. For the avoidance of doubt, they will not be covered by the seasonal workers exemption and therefore unless they fall under one of the other exemptions listed, they will have to self-isolate for up to 10 full days in England or 10 days in Wales in their own accommodation upon returning to the UK. A full list of the exemptions can be found here. They may however be eligible for the ‘Test to Release’ scheme (see above for more details).

Where employers know that employees are taking annual leave and are likely to be visiting a country which may not be on the travel corridor list at the time of their return to the UK, they should discuss the self-isolation requirements with the employee before they go away to ensure they understand the rules that apply on their return. Employers should agree how the employee's return will be managed. Consider working from home, unpaid or paid leave, or further annual leave to cover any self-isolation periods.

Guidance has been produced on self-isolating after returning to the UK to help employers and employees.

Pay:

Currently there are no provisions in place for this period of self-isolation to be paid or an entitlement to SSP. There is no obligation on employers to pay their employees self-isolating in these circumstances, but they may choose to do so, or may agree that the employee can take annual leave to cover this time, where possible. Where the employee is having to self-isolate due to a work related trip, it would be reasonable and advisable for an employer to give full pay for this period.

Coronavirus: testing for people travelling to England and Wales

From 4am 18 January 2021, passengers (including British citizens) arriving by boat, plane or train from all international destinations are required to present a negative COVID-19 test result before departing for England or Wales. The test must have been taken up to 72 hours prior to departure. Passengers will be subject to an immediate fine of £500 if they fail to comply with the new requirement. Passengers arriving from countries not on the government’s travel corridor list must self-isolate for 10 days regardless of their pre-departure test result to provide further protection from those travelling from high-risk countries.

Passengers will need to find their own test provider and ensure it meets the required standard.

Test results must be in English, French or Spanish – translations will not be accepted and they can be in a printed document or as an email or text message.

More detail is available online for those travelling to England and for those travelling to Wales about what counts as a suitable test, where a passenger may be able to find information on where they can source a test and what data needs to be included with the test results.

Coronavirus tests whilst self-isolating

As from 15 February 2021, any person arriving from outside the Common Travel Area must take a COVID-19 test on day 2 and 8 of their 10-day self-isolation. The tests must be booked and paid for prior to travel. The travel test package booking reference number will be needed for the passenger locator form. A negative test on either day 2 or 8 will not bring the self-isolation period to an early end, the 10 full days must be completed. If either test shows a positive result, the period of self-isolation must continue for a further 10 days from the day the test was taken. Failure to take the tests may result in a penalty of up to £2,000. . For people coming to England, there are a number of private providers offering the day 2 and 8 testing package, with different costs for the package. The government does not endorse or recommend any test provider. Individuals should conduct their own research about available providers, the tests they supply and their terms and conditions of sale. More details on providers of day 2 and 8 tests in England are available here and more details on how to quarantine in England are also available online.

For people arriving into Wales, information on the rules upon arrival is available here and the day 2 and 8 package tests can be booked via an online portal.

The testing requirements apply to all arrivals, including those with jobs that qualify for other travel exemptions, unless there is a specific exemption granted for testing to that particular job. Please always check the latest information on such jobs and their exemptions. Currently one exemption listed is for seasonal workers in edible horticulture, however, you should check the list routinely for the full details and any changes. This exemption is only in place up to and including 5 April 2021 and is an important point for members to bear in mind in relation to their migrant workforces. New bespoke testing arrangements take effect from 6 April 2021 where seasonal workers in edible horticulture will need to take a mandatory workplace, community or home lateral flow device (LFD) test on or before days 2, 5 and 8 after their arrival.

In these cases, employers have a duty to take reasonable steps to facilitate employees taking COVID-19 tests, please see ‘What duty is there on employers to facilitate the testing of employees?’ for more information on this.

If a person chooses to take part in the Test to Release Scheme (in England only) and is then eligible to end their self-isolation early, they must still have a COVID-19 test on day 8. If this has a positive result, they will need to self-isolate for 10 full days from when they took the test.

There is no statutory obligation on an employer to pay for any of these tests for any of their workers, whether they be foreign seasonal workers or existing members of staff returning home. In some cases, an employer may choose to pay for or make a contribution towards such costs, and where you are considering anything like this, it is important that you speak to one of our Employment Advisers at the Helpline for more information before you take any further action. 

Normally when you take on new workers, you have to carry out in person document checks to ensure that they have the right to work in the UK as part of the recruitment process. Now due to the measures in place to deal with the virus this means this is not always possible. 

Following NFU and business lobbying, the government have announced that right to work checks are to be relaxed during the COVID-19 pandemic to allow them to be carried out remotely. This move is welcome as it is a pragmatic solution to recruitment issues, whether this is for seasonal work or to fill more permanent positions.

It is important to note that this is a temporary process.

The process that will now need to be followed as from 30 March 2020 is to:   

  • Ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app 
  • Arrange a video call with the worker – ask them to hold up the original documents to the camera and check them against the digital copy of the documents 
  • Record the date you made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19” 
  • If the worker has a current Biometric Residence Permit or Biometric Residence Card or status under the EU Settlement Scheme you can use the online right to work checking service while doing a video call - the applicant must give you permission to view their details 
  • If the worker is unable to provide any documents you should use the Employer Checking Service

These steps are only a temporary measure and will not provide any statutory defence to illegally employing a worker. It is still an offence to knowingly employ somebody who does not have the right to work in the UK. When the coronavirus temporary measures end as notified by the Home Office, employers will need to carry out retrospective right to work checks for workers employed during the temporary measures or for those who needed a follow up right to work check during this time. There will be an 8 week grace period and employers should keep copies of the initial and retrospective checks. The retrospective check should include the following statement: ‘the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19.’

If, during a retrospective check, an employer finds out that the worker does not have the right to work, they must end their employment immediately.

More detail is available here: https://www.gov.uk/guidance/coronavirus-covid-19-right-to-work-checks.

At the start of the pandemic working from home was encouraged but was not made compulsory as it is not possible in all cases. From 1 August 2020 the work from home guidance changed giving employers more discretion, in consultation with their employees, on how to ensure people can work safely - working from home is one way to do this, but workplaces can also be made safe by following covid-secure guidelines, for more information please see our separate ‘COVID-19 Secure – What you need to know’ Q&As. However, the latest guidance issued on 22 September 2020 is that office workers who can work effectively from home should do so over the winter. Where an employer, in consultation with their employee, judges an employee can carry out their normal duties from home they should do so. Public sector employees working in essential services, including education settings, should continue to go into work where necessary. Anyone else who cannot work from home should go to their place of work and follow COVID-secure guidelines and legislation, subject to any national or local lockdown, or other restrictions in place. As part of the COVID-19 Response Spring 2021, ahead of Step 4 (which will start no earlier than 21 June 2021) there are plans to review the working from home guidance. Until this review is complete, the guidance states that people should continue to work from home where they can.

The government have changed the terminology they have used previously and are now referring to ‘critical workers’ rather than ‘key workers’. The content of the guidance has not been changed but it is still crucial to refer to the list of critical workers the government has publicised . This includes those involved in food production, processing, distribution, sale and delivery as well as those essential to the provision of other key goods (for example hygienic and veterinary medicines) with farmers specifically mentioned in DfE advice for parents.

This announcement by government is only intended to address the problems that could have been caused if workers are unable to work due to closures of schools and nurseries rather than being unwell. It is important to highlight however, that if it is at all possible for children to be at home, without relying on those in at risk groups (such as grandparents, friends/ family members with underlying conditions etc) then they should still be kept home even for workers in these sectors.

Parents should also do everything they can to ensure children are not mixing socially in a way which can continue to spread the virus. This means children should observe the same social distancing principles as adults.

If within a family there is one parent who is a critical worker, the other parent would still be able to take emergency time off for dependants to make care arrangements and employers should still treat them as any other working parent, see - What if my employee can’t come to work because their child attends a school which has closed due to coronavirus? Employers should not expect working parents to make use of the school facilities available to critical workers.

Currently, the only government list of ‘critical workers’ is for ‘critical workers’ whose children should be provided with education provision. This makes no link between critical workers and any justification to work or to travel for work purposes. The current government position on travel for work purposes is that this is allowed for businesses which are still able to open, but only where working from home is not possible. The Government has urged workers to help control coronavirus and travel safely by walking and cycling, if they can but where this is not possible, to use public transport or drive.   When using public transport its recommended trying to avoid travel at traditional ‘peak times’ or ‘rush hours’, or to get off a stop early if it’s less busy, or walk for more of your journey where possible.

For more information about whether you operate a business which the Government have forced to close please see https://www.gov.uk/government/publications/further-businesses-and-premises-to-close or https://gov.wales/coronavirus-covid-19-closure-businesses-and-premises

The latest guidance is that those who have a new persistent cough or high temperature or loss or change to their sense of smell and/or taste, or those with coronavirus, those with others in their household or support bubble with symptoms, or those advised to self-isolate by a doctor,  NHS 111 or NHS Test and Trace or Test, Trace, Protect service should self-isolate. The NHS website has guidance on how to recognise a high temperature and new continuous cough: https://www.nhs.uk/conditions/coronavirus-covid-19/ Some may also be advised by a doctor or healthcare professional to self-isolate for up to 14 days before going into hospital for surgery.

The standard period of self-isolation was increased on 30 July to 10 days for people with symptoms. For those who are self-isolating because someone in their household or support bubble has symptoms or because they have been advised by the NHS that they have come into contact with someone who has tested positive for coronavirus, the self-isolation period has been reduced from 14 days to 10 full days, as from 10 December 2020 in Wales and 14 December 2020 in England. The self-isolation period includes the date the symptoms started (or date of the test if there are no symptoms) or the date of the last contact with the other person, and the next ten full days. Please refer to the latest NHS guidance on exactly how long a person must self-isolate for, including occasions where a person has symptoms for a further time.

From 28 September 2020, in England people who have been instructed by NHS Test and Trace to self-isolate (including those who have tested positive for coronavirus) will be required to do so by law. New fines for those breaching self-isolation rules will start at £1,000 (the same as the penalty for breaking quarantine after international travel) but could increase to up to £10,000 for repeat offences and for ‘the most egregious breaches’. There is a legal duty upon those who are legally required to self-isolate to inform their employers of this with the start and expected end date of self-isolation. This information should be given as soon as reasonably practicable and, in any event, before they are next due to start work within the isolation period. A fixed penalty notice for £50 may be issued for any breach of this requirement. Employers who prevent or try to prevent others from self-isolating will also face the same level of fines. It is still reasonable to expect those who can, to work from home whilst self-isolating but employers must not ask, encourage or expect those who are required to self-isolate to come into the work place.

Statutory Sick Pay (SSP) regulations have been amended to include self-isolation because somebody has symptoms or is living in the same household or shares a support bubble with another person who has symptoms or where advised by NHS Test and Trace or Test, Trace, Protect to self-isolate to prevent the spread of coronavirus. This change takes affect from 13th March 2020 (28 May 2020 for NHS Test and Trace or Test, Trace, Protect self-isolation and 6 July 2020 for those in a support bubble) and although it is not retrospective the guidance is that employers should treat those employees who were self-isolating in accordance with the official advice in the same way and pay them SSP, even if there was no fit note to cover the absence.

A further change came into effect from 16 April 2020 so that those who have been deemed to be extremely vulnerable and have received written notification that they should shield themselves, are now also entitled to SSP where they meet the rest of the eligibility criteria. For more information please see ‘What is Shielding?’.

More changes were made on 26 August 2020 so that those who have been advised by a doctor or healthcare professional to self-isolate before going into hospital for surgery are also eligible for SSP.

An employee can self-certify their own sickness for the first 7 days and some may do this where they believe they have the coronavirus or symptoms of it. The Government have “strongly suggested” employers to be more flexible and exercise discretion where an employee may not have a fit note, but “isolation notes” are now available from NHS 111 Online, NHS mobile phone app and the NHS website, so employers should be accepting these as suitable evidence. The NHS Test and Trace or Test, Trace, Protect service will provide a notification that can be used as evidence that someone has been told to self-isolate.

There is no legal obligation to pay full pay and it is clear that an employer need only pay SSP where an employee qualifies for it. Where possible it is good practice to consider paying full pay to prevent an employee from coming to work and risk spreading the virus to others. Employers will need to take special account of those employees who don’t qualify for SSP. In any case, however, where employers choose to pay anything more than what they are legally obliged to pay, it should be made clear how long the additional payments will last for and under what circumstances they will be paid, otherwise there is a risk that custom and practice will deem those additional payments to become a contractual right of the employee for the future. The Government has implemented emergency legislation to give those employees who are self-isolating in accordance with the law and guidance, but unable to work from home and are entitled to SSP, the right to receive payment on the first 3 waiting days of SSP, which in ordinary circumstances would normally be unpaid, however there must still be a period of incapacity for work, this is any period of four or more consecutive days, each of which is a 'day of incapacity for work'.

The new legislation came into force 28 March 2020 and applies to anyone who had a period of incapacity due to coronavirus on or after 13 March 2020 (28 May 2020 for NHS Test and Trace or Test, Trace, Protect self-isolation and 6 July 2020 for those in a support bubble). As with all of these new measures the Government have recommended that employers apply the same principles to those employees who were self-isolating prior to 13 March 2020.  There are also measures in place to provide funding through state benefits such as Employment Support Allowance or Universal Credit to those employees who wouldn’t ordinarily qualify for SSP or other sick pay.  

As from 28 September 2020, in England only, those who are complying with the legal obligation to self-isolate because they have tested positive for coronavirus or have been notified by NHS Test and Trace to self-isolate, will be entitled to receive a payment of £500 from the Test and Trace Support Payment Scheme where they are eligible. This will be set by local authorities and is due to be in place from 12 October 2020. Payments will be backdated for anyone qualifying from 28 September. This is another benefit which employers are not involved with or have any financial liability towards. The benefit is for those who are unable to work from home and will lose income whilst they are legally required to self-isolate, and are currently receiving Universal Credit, Working Tax Credit, income-based Employment and Support Allowance, income-based Jobseeker’s Allowance, Income Support, Housing Benefit and/or Pension Credit. It will be payable in addition to any other employment benefits the person may already be entitled to, such as SSP.

There is temporary help for employers with less than 250 employees so that they are able to recover the first 14 days of SSP paid. Employers will be required to keep records of absence, so it is important that you are keeping records now of what time off employees have and the reason/s why.  See – What SSP can I reclaim and how do I do this?

If a fit note has been issued then you should follow your normal sick leave and sick pay policy as appropriate. The right to receive SSP from day one will also apply in these circumstances where an employee has been diagnosed with coronavirus.

If your employee is off sick with coronavirus then AWSP should be paid as normal. Where your employee has been advised to self-isolate then strictly speaking they would only be entitled to SSP as per the new legislation.  However, ACAS guidance advises employers should be reasonable and treat self-isolation as sickness in accordance with their normal sickness policy.  Therefore, this would suggest that employers should consider paying eligible agricultural workers AWSP where they are self-isolating.

Acas have advised that employers must be especially careful and follow the recommended steps for vulnerable employees such as pregnant women, people with long term health conditions and those aged over 70, so employers will need to consider making arrangements to keep these employees safe, such as home working, use of annual leave or in some cases sending them home on full pay. These vulnerable groups are being urged to limit social interaction where possible, they are not specifically being advised to self-isolate, unless they meet the common requirements to self-isolate. From 1 August 2020 the work from home guidance changed and employers now have more discretion, in consultation with their employees, on how to ensure people can work safely - working from home is one way to do this, but workplaces can also be made safe by following covid-secure guidelines, for more information please see separate ‘COVID-19 Secure – What you need to know’ Q&As.

It is the “extremely vulnerable and at very high risk of severe illness from coronavirus because of an underlying health condition” who are advised to follow shielding guidance – for more information see – ‘What is Shielding?’. It is therefore important to distinguish between ‘vulnerable’ and ‘extremely vulnerable’.

SSP is only payable to those who are self-isolating because:

  • they have symptoms or,
  • are living in the same household or share a support bubble with another person who has symptoms, or
  • those who are following written advice to shield as they are classed as extremely vulnerable.

See ‘What to do if an employee is advised to self-isolate?’ and ‘What is Shielding?’ for further information.

If you have an employee in one of these vulnerable groups who chooses to self-isolate, you should discuss their concerns with them and try to reach an amicable solution such as home working, annual leave or unpaid authorised leave. The Government guidance for employers and businesses regarding vulnerable groups has been “employees from defined vulnerable groups should be strongly advised and supported to stay at home and work from there if possible”. This does not mean that employees are entitled to full pay where they have decided not to come into work and are unable to work from home, but the Government’s words suggest that employers should be considering what pay they are able to make in such circumstances. Now that employers have more discretion on how people can work safely, discussions should be held with affected employees about the best working arrangements for the immediate future. If it is the employer’s decision that the employee should stay away, this will be on full pay, unless you are able to agree any specific alternative pay arrangements with your employee. Please contact the Helpline to discuss any such proposals before implementing them.

Risk assessments should already have been completed for women of child bearing age including biological risks, such as Coronavirus, to them and/or their unborn child. If a risk is identified as a result of Coronavirus then employers need to make adjustments to the workplace as outlined above. Where these options are not reasonable or possible then employers have a duty to suspend the woman on full pay. If this happens to be within the last four weeks before the baby is due and the reason for the absence is wholly or partly pregnancy related this will automatically trigger the start of her maternity leave. This is only the case where the absence is pregnancy related and would therefore not apply if there was not enough work for her to do. In those circumstances see - Coronavirus is impacting my business and there has been a downturn in work or the business has been forced to close.

The current Government advice is and continues to be for everyone to stay alert and to limit contact with other people with social distancing but this is balanced against the plan to return life to as near normal as possible.

More guidance is available online: https://www.gov.uk/government/publications/staying-alert-and-safe-social-distancing/staying-alert-and-safe-social-distancing#contents..

ACAS have advised employers to try and support their workforce to take these steps to follow social distancing and where employers are still able to safely operate their business they should consider agreeing to more flexible ways of working, for example changing start and finish times to avoid busier commuting times, allowing staff to work from home wherever possible, and cancelling face-to-face events and meetings and rearranging to remote calling where possible, for example using video or conference calling technology.

Shielding was brought in to protect people who are clinically extremely vulnerable by minimising all interaction between those who are extremely vulnerable and others. The Government at the time were “strongly advising people with serious underlying health conditions which put them at very high risk of severe illness from coronavirus (COVID-19) to rigorously follow shielding measures in order to keep themselves safe”. At different stages of the pandemic, the government have advised whether people needed to shield or whether the shielding advice was paused. The latest advice in both England and Wales is that shielding is paused as from 1 April 2021. People falling into this extremely vulnerable group include:

  1. Solid organ transplant recipients
  2. People with specific cancers:
    • people with cancer who are undergoing active chemotherapy or radical radiotherapy for lung cancer
    • people with cancers of the blood or bone marrow such as leukaemia, lymphoma or myeloma who are at any stage of treatment
    • people having immunotherapy or other continuing antibody treatments for cancer
    • people having other targeted cancer treatments which can affect the immune system, such as protein kinase inhibitors or PARP inhibitors
    • people who have had bone marrow or stem cell transplants in the last 6 months, or who are still taking immunosuppression drugs
  3. People with severe respiratory conditions including all cystic fibrosis, severe asthma and severe COPD.
  4. People with rare diseases and inborn errors of metabolism that significantly increase the risk of infections (such as SCID, homozygous sickle cell).
  5. People on immunosuppression therapies sufficient to significantly increase risk of infection.
  6. Women who are pregnant with significant heart disease, congenital or acquired.
  7. Adults with Down’s syndrome
  8. Adults on dialysis or with chronic kidney disease (stage 5)
  9. Other people have also been classed as clinically extremely vulnerable, based on clinical judgement and an assessment of their needs. GPs and hospital clinicians have been provided with guidance to support these decisions.
  10. Those who have been identified through the COVID-19 Population Risk Assessment as potentially being at high risk of serious illness if they catch the virus.

When the advice on shielding is paused, there are still recommendations in place for extra precautions to be taken by those who are extremely vulnerable. Where they are unable to work from home, they can return to their workplace, so long as it is COVID-secure. They will still continue to be eligible to be furloughed on the basis that they are extremely vulnerable but they will not be eligible for SSP on the basis of being advised to shield. In some areas where there are local restrictions in force, the pause on shielding may be lifted and the government will write to those in the area who are deemed to be clinically extremely vulnerable and advise them to stay at home and shield.

There is still guidance in place for those who have previously been identified as clinically extremely vulnerable and have received a letter from the NHS or their doctor advising them that they fall into this group. The guidance is tailored to suit the tier that the person concerned lives and/or works in. Within the specific tier information there is further detail for those people who work.

If your employee lives with someone who has been advised to shield for the period of enhanced restrictions – they can still attend work if they cannot work from home.

If you have an employee who has been contacted by the NHS and advised to shield themselves, you should do all that you reasonably can to support your staff in following these guidelines. You should consider making arrangements to keep these employees safe, such as home working, use of annual leave or in some cases sending them home. Although the guidance on shielding has changed, you must still review and re-assess existing arrangements that have been made for any employee who was/is shielding in light of current working safely during coronavirus guidance.  

Originally shielding did not fall within the scope of SSP. Legislation was changed so that where somebody is shielding because they have been defined in public health guidance as extremely vulnerable and at very high risk of severe illness from coronavirus because of an underlying health condition; and they have received written notification sent to advise they should shield, they will  be able to receive SSP for this time. This is subject to satisfying the usual SSP eligibility criteria and came into effect from 16 April 2020.Whilst shielding is paused, there is no eligibility for SSP, even if an employee has not returned to work. In some areas where there are local restrictions in force, the eligibility for SSP may continue or be resumed if the pause on shielding is lifted for those in the area who are deemed to be clinically extremely vulnerable.

As the absence is coronavirus related, the usual three waiting days for SSP will not apply and many employers may be able to claim for the first 14 days of SSP paid as per the new Coronavirus Statutory Sick Pay Rebate Scheme, for more detail on this see – What SSP can I reclaim and how do I do this?

The usual rules and guidance about evidence of incapacity are that employees can self-certify their absence for the first seven days, after which normally they would be expected to provide medical evidence. Employers are strongly advised by the government to be flexible and to use their discretion around the need for medical evidence, as it will not always be easy for these employees to be able to obtain a fit note. In some cases, the employee may be willing to show their employer the letter they will have received advising them to follow shielding measures, but they are not obliged to do so. 

If you have an employee who has been advised to be shielding, you should discuss their concerns with them and try to reach an amicable solution. This does not mean that employees are entitled to full pay where they have decided to follow advice and not come into work and are unable to work from home, but the Government’s words suggest that employers should be considering what pay they are able to make in such circumstances.  If it is the employer’s decision that the employee should stay away, this will be on full pay, unless you are able to agree any specific alternative pay arrangements with your employee.

More detail on shielding in England is available here: https://www.gov.uk/government/publications/guidance-on-shielding-and-protecting-extremely-vulnerable-persons-from-covid-19/guidance-on-shielding-and-protecting-extremely-vulnerable-persons-from-covid-19. The Welsh Government have guidance for protecting people defined on medical grounds as extremely vulnerable from coronavirus.

Where an employee has chosen to follow advice and is shielding with no opportunity to work from home, employers should discuss matters with their employee and try to reach an amicable decision as to whether the best option is:

  • place them on furlough and pay a furlough wage whilst the CJRS is live (there is no requirement for an employer to be facing a wider reduction in demand or to be closed to be eligible to claim for these employees),
  • pay SSP where the employee satisfies the usual eligibility criteria,
  • some other form of payment which is at least equal to SSP where the employee would normally qualify for SSP, or
  • unpaid leave where there is no entitlement to SSP, although this option would not be in line with government recommendations.

In addition; government guidance has now confirmed that employees who are shielding in line with public health guidance, may be placed on furlough – see our separate guidance on furlough leave.

At the end of the shielding period, employers will need to discuss with affected employees what the best arrangements are, which could include:

  • working from home
  • return to the workplace where working from home is not possible, but only if the workplace is COVID-secure
  • placing them on furlough whilst the CJRS is live
  • unpaid leave
  • use of annual leave, although this is only a short-term solution.

England

On 11 May 2020 the government announced further ‘COVID-19 secure’ guidelines for employers to follow to help them get their businesses back up and running and workplaces operating as safely as possible.

Since then the guidance has been updated and now covers at least 14 different workplace settings which are allowed to be open, from outdoor environments and construction sites to factories and takeaways.

From 28 September 2020, the COVID-secure guidance will become a legal requirement and businesses who fail to comply will be subject to fines of up to £10,000.

A downloadable notice is available for employers to display in their workplaces to show their employees, customers and other visitors to their workplace, that they have followed the guidance. The notice has been updated from the earlier version to reflect the changes made to the 2m distance rule in England. In view of this change this notice now applies to England only.

Employers are advised to look at the guidance which is specific to the nature of their business, and in some cases more than one set of guidance should be referred to where there is an overlap of the nature of the business. All versions of the guidance can be found here.

On 23 June 2020, it was announced that from 4 July 2020 further measures will take affect in England only, to ease the lockdown and social distancing restrictions. The Prime Minister set out that where it is not possible to stay two metres apart, guidance will allow people to keep a social distance of ‘one metre plus’. This means staying one metre apart, plus mitigations which reduce the risk of transmission. These measures will be kept under review.

Previously there was ‘5 Steps to working safely’ to supplement the guidance but this was withdrawn on 9 September 2020.

If you have any queries about making your workplace ‘COVID-19 secure’ please see our separate Q&A specifically dealing with these issues.

Wales

In Wales, the government have introduced a legal duty with regard to social distancing which will apply to any workplace, including homes, where work and repairs are being undertaken and outdoor spaces. The Welsh government have produced guidance for keeping ‘Wales safe at work’. The announcement made on 23 June by the Prime Minister concerning easing lockdown and social distancing restrictions only applies to England and therefore does not change anything in Wales. Within each sector specific guidance there is a notice for employers to display in the workplace to show their employees, customers and other visitors in the workplace, that they have followed the guidance.  The regulations in Wales mean that all businesses will have to take all reasonable measures to ensure the 2 metre rule is maintained between people on their premises whenever work is being carried out. The guidance on this also recognises that there are some workplace settings in which this distance may not be possible to maintain all of the time and in this situation, it makes clear that other measures should be considered e.g. minimising levels of interaction; physical barriers, improved hygiene, hygiene reminders, hand washing after close contact with others and ensuring those with symptoms are not present on the premises. Enforcement where all reasonable measures have not been taken will either entail a fixed penalty of £60 (this reduces to £30 if paid within 14 days but is doubled to £120 for a second a subsequent breach) or if charged and convicted, payment of a fine. The Welsh Government also have their own advice for businesses in Wales, including sector specific guidance, all of which can be found here: https://gov.wales/business-and-employers-coronavirus.

The Welsh government have also introduced a 5 step key principles for workplaces in Wales, summarised below.

1. Care: Our health and well-being comes first

Everyone should approach the health, safety and well-being of each other in the workplace through this emergency with compassion and understanding.  Employers should look after their employees’ psychological and physical well-being. Employers can focus on reducing sources of stress for the workforce, both in terms of health anxiety and workload issues; with clear communications and assurance on the management of coronavirus (Covid-19) risk.

For those that cannot work from home, it is important for employers to establish an initial assessment on whether it is safe for staff to work and where relevant, signpost them to appropriate support organisations.

Employers should take extra care to safeguard vulnerable employees. They should record who is vulnerable and who has received a letter requiring them to shield.

2. Comply: The laws which keep us safe must be obeyed

Employers must continue to fulfil their legal duties under new and existing health and safety laws to maintain and protect the physical and mental health, safety and welfare of their employees and customers and visitors to their premises.

Where they cannot provide a safe working environment during the current emergency, they must determine what steps are needed to create one. If the employer still cannot provide a safe working environment, they must cease operations and if necessary, furlough staff.

Employees also have a legal responsibility to their employer and each other to follow instructions concerning safe working practices.

3. Involve: We all share the responsibility for safe work

Employers are required by law to protect their employees, and others, from harm. Employees also have a duty of care of their own safety and those of others. This is a shared responsibility.

Employers should maintain regular and meaningful engagement with their employees and with the recognised trade union or, if there isn’t one, a representative chosen by workers (including their health and safety committee, if this exists) during the coronavirus emergency.

4. Adapt: We will all need to change how we work

The consultation between employers and employees will help to identify the essential hygiene protocols, equipment and measures needed to keep the workplace safe from coronavirus (Covid-19) and limit its transmission. All work places are different, but there is a growing body of industry specific guidance and examples of good practice from work places which have not closed, available to draw upon.

Taking all reasonable measures to ensure that two metres distance is kept between all people in the workplace combined with robust hygiene measures is the aim.

5. Communicate: We must all understand what to do

It is essential that there is clear, precise and constant communication between employers, employees and other visitors to the workplace, about the reasonable and proportionate actions taken regarding workplace safety. It is important that everyone gets the same message and same instruction. Employers should ensure that communications are accessible for all staff.

Employees will need assurance before their return to work to that the employer is aware of any particular needs they have. All employees will need to be confident that the safety and well-being of the workforce and visitors is a key priority.

Safety messages should be circulated regularly to all employees using an agreed method which is accessible to all.  Posters and prominent visual aids and notices in the workplace will help reinforce these safety messages.

If you have any queries about making your workplace ‘COVID-19 secure’ please see our separate Q&A specifically dealing with these issues.

Where you are already using PPE, such as face masks, in your work activity to protect against non-COVID-19 risks, you should continue to do so.

Workplaces should not encourage the precautionary use of extra PPE to protect against COVID-19 outside clinical settings or when responding to a suspected or confirmed case of COVID-19.

An alternative to a face mask is a face covering. A face covering can be very simple and may be worn in enclosed spaces where social distancing isn’t possible, it is not a replacement for other ways of managing risk. It just needs to cover your mouth and nose. Face coverings are not the same as the PPE used to manage risks like dust and spray in an industrial context, or by health and care workers. Supplies of PPE, including face masks, must continue to be reserved for those who need them to protect against risks in their workplace.

The English and Welsh Governments have taken different approaches as to whether face coverings should be compulsory and in what circumstances.

England

For details of where it is a legal requirement to wear a face covering in England please check the government website for the latest list of places.  Examples of places on the list include:

  • Public Transport and transport hubs
  • Shops, supermarkets, indoor shopping centres, banks/building societies and post offices 
  • Visitor attractions such as museums, galleries, cinemas and indoor zoos and visitor farms
  • Places of worship

Please see the website for the full list.

From 24 September 2020, it will be compulsory for retail, leisure and hospitality staff to wear a face covering in areas that are open to the public and where they come or are likely to come within close contact of a member of the public. This includes shops, supermarkets, bars, pubs, restaurants, cafes, banks, and the public areas of hotels and hostels. Employees who do not comply are liable to a fine of £200 unless they have reasonable excuse for not wearing a face covering. Reasons include disability, or where it would cause severe distress, for a full list of the reasons see here. However if these businesses have taken steps in line with Health and Safety Executive guidance for COVID-19 secure workplaces to create a physical barrier between workers and members of the public then staff behind the barrier will not be required to wear a face covering.

Workers in other types of settings where the public must wear a face covering, such as public transport are exempt from having to wear a face covering, although employers may consider their use where appropriate and where other mitigations are not in place, in line with COVID-secure guidelines.

Details on wearing a face covering in England and how to make your own can be found here and includes information on how to wear a face covering, the circumstances when a face covering is not necessary and links to exemption card templates. As per the guidance updated on 26 November 2020, face shields or visors may be worn in addition to a face covering, but not instead of as they do not adequately cover the nose and mouth.

Wales

On 13 July 2020 the First Minister of Wales announced three-layer face coverings will be mandatory on public transport in Wales from 27 July, including in taxis and other situations where 2m social distancing was not possible.

Since then it has become compulsory in Wales from 14 September 2020 for face coverings to be worn in shops and other indoor public places, excluding when anyone is on premises where food or drink is sold or otherwise provided, for consumption on those premises.  This rule applies to the customers and staff working there. Where a person has a reasonable excuse, such as a disability, a face covering need not be worn. Full details of what may amount to a reasonable excuse can be found here.  There may be occasions where employers require their staff to wear a face covering in a place which is not open to the public if social distancing can’t be maintained.  It is important that you support workers in using face coverings safely. This means telling workers:

  • wash your hands thoroughly with soap and water for 20 seconds or use hand sanitiser before putting a face covering on, and after removing it
  • when wearing a face covering, avoid touching your face or face covering, as you could contaminate them with germs from your hands
  • change your face covering if it becomes damp or if you’ve touched it
  • continue to wash your hands regularly
  • change and wash your face covering daily
  • if the material is washable, wash in line with manufacturer’s instructions. If it’s not washable, dispose of it carefully in your usual waste
  • practise social distancing wherever possible

On 9th June 2020 the Welsh Government issued Guidance on Face Coverings for the public, whilst it was optional to use them. This guidance provided information on how and when you could use a face covering to protect those around you, if you choose to wear one. The guidance can be found here and is still applicable following the change in law. Within the guidance there is detail on what may amount to a reasonable excuse for not wearing a face covering in circumstances where it would be compulsory. Specific guidance supplementing the change in law is available for employers and managers of premises here. Employers should ensure that their staff are aware of these requirements, and the limited exceptions to them. In these specific circumstances, while the primary responsibility lies with the staff member, who can ultimately be subject to a fine up to £1920, employers should also make every effort to ensure that all staff in areas open to the public comply with the law.

If your employees are employed in a setting where it is compulsory for them to wear a face covering and they refuse to wear one or are caught not wearing one you should establish if they have any legitimate reason for not wearing the face covering.

If an employee unreasonably refuses to wear a compulsory face covering it may be possible to take disciplinary action. Employers must take a reasonable approach and ensure that they have made it explicitly clear in writing when and where face coverings must be worn and also warned what possible consequences an employee may face for any breaches of a reasonable health and safety instruction like this.  As with any other type of possible disciplinary matter the alleged breach should be properly investigated before taking any further action. If you are contemplating a dismissal it is important that you contact the Helpline for advice on this approach before taking any action.

The same duty of care is owed to these people but there is no statutory obligation to pay them if they are ill or are self-isolating, subject to the terms of any contract. In the Budget it was announced that those people not entitled to SSP including zero hours workers and the self employed would be entitled to receive Employment and Support Allowance (ESA), but this is something they would need to claim through Job Centre Plus or online from: https://www.gov.uk/employment-support-allowance/how-to-claim, you do not have to pay this to them.

There are also other measures which have been announced, if you wish to help any contractors with guidance you can refer them to the Government webpages for more information as and when it becomes available. 

Any employees covered by the Equality Act 2010 and classed as disabled will be entitled to the same duty of care applicable to all of your other employees, but there is also the additional requirement not to discriminate against these employees and to consider making reasonable adjustments. What is reasonable will depend on the circumstances but could include; working from home or sending an employee home who suffers with respiratory problems or has mental health issues and has increased anxiety levels due to their fear of coronavirus. Prioritising a disabled employee who is also classed as a vulnerable worker is likely to be a reasonable adjustment in many cases. Take advice from the Helpline on these sorts of queries.

You should discuss your concerns with the employee and consider what alternatives there may be such as working from home, annual leave or paid leave if you are willing to offer this.

Where there are no suitable alternatives and there is a legal requirement to self-isolate, such as when a person has been notified by NHS Test and Trace, or Test, Trace and Protect, or they are required to self-isolate because they have visited a country which is not on the travel corridor list then you must send them home. People who do not self-isolate, and employers who knowingly require or encourage someone in these circumstances to come to/stay at work can both be fined from £1000 up to £10,000.

As self-isolation in these cases is a legal requirement you should pay your employee SSP or company sick pay where they qualify for it.

If an employee is refusing to self-isolate in other cases contrary to government guidance, such as when they or someone else in their household or support bubble has symptoms but has not yet been tested, you should still encourage the employee to follow the NHS and Government guidance. Ultimately if they refuse to stay at home and you are satisfied that they should be self-isolating as per the guidance then you must send them home and tell them to stay there until their self-isolation period is completed. Depending on the circumstances this may have to be on full pay, please contact the HELPLINE for further advice in these circumstances. If you allow them to continue to work when they should be self-isolating as per the guidance, you could be fined for failing to ensure the workplace is COVID-secure.

In all cases you should encourage your employee to use and follow the advice on the NHS Online Coronavirus service: https://www.nhs.uk/conditions/coronavirus-covid-19/. The NHS 111 service should only be used where no support is available online.

Currently there is no guidance advising that you should automatically close the workplace where an employee has attended the workplace and is suspected or known to have the coronavirus. Employers are advised to follow cleaning guidance: https://www.gov.uk/government/collections/coronavirus-covid-19-list-of-guidance#guidance-for-non-clinical-settings and you should refer to our 'COVID-secure' - what you need to know’ Q&A for further guidance.

If you operate a business that is still running or is about to, or has recently re-opened  and you have an employee who is worried about catching the coronavirus from others in the workplace you should listen carefully to their concerns and try to reassure them with the steps you are taking to make and keep the workplace safe, showing that you are doing all that you reasonably can to allow for social distancing. ACAS have suggested where possible home working or flexible working should be offered and this is also something that the Government have indicated they will advise employers to consider, but this is not always going to be a feasible option for many members. Alternatively, annual leave or unpaid leave may be agreed where this is available. From 1 August 2020 the work from home guidance changed and employers now have more discretion, in consultation with their employees, on how to ensure people can work safely - working from home is one way to do this, but workplaces can also be made safe by following covid-secure guidelines, for more information please see separate ‘COVID-19 Secure – What you need to know’ Q&As.

If an employee unreasonably refuses to attend work and they are not displaying any symptoms or have not been advised to self-isolate, it may be possible to take disciplinary action. The underlying message from government guidance is for employers to adopt a reasonable approach and that workers should not be forced into an unsafe workplace. As such; invoking a disciplinary process should be a last resort and where all other options have been genuinely and fully considered. Where an employee is dismissed or suffers any detriment for any steps or action they have taken (such as a refusal to work) based on their genuine belief that doing so would have left them or put them in serious and imminent danger, the employee would be entitled to make an employment tribunal claim. There is no minimum length of service needed for such a claim. It is important that you contact the Helpline for advice on this before taking any action.

This would be covered by the emergency time off for dependents leave where employees can take a reasonable period of unpaid leave to deal with an emergency such as this. Employers should think about what longer term options are available for employees such as home working, flexible working, annual leave or authorised unpaid leave.

Revised guidance for the CJRS states employers may furlough employees who are unable to work because they have caring responsibilities and provides the example of employees looking after children. Please see our separate guide on furlough leave.

Please see our separate Q&A for queries you may have about bringing people back into the workplace after furlough or other periods of absence:

https://www.nfuemploymentservice.com/news/returning-to-work-after-furlough-and-other-periods-of-absence-qa/

If you have any queries about making your workplace ‘COVID-19 secure’ please see our Q&A specifically dealing with these issues.:

https://www.nfuemploymentservice.com/news/covid-secure-what-you-need-to-know/

Employers are being advised to think about the long term so that they can ensure consistency with their approach to matters such as how might discretionary sick pay apply, will self-isolation absence be treated as sickness absence for the purpose of sickness records or trigger points.

NFU Employment Service members can speak to an adviser through our Helpline for advice on how to handle these issues.