Self Isolation and Working From Home
There are significant employment law considerations for employers arising from self isolation and staff working from home for a prolonged period.
Our FAQs are for general guidance only, and do not constitute and should not be relied upon, as legal advice. Every business and challenge is different. If you are an employer and your business needs specific support and advice for your unique context please contact us at firstname.lastname@example.org
Last update: 11/06/2020 – 13.20
Medical evidence is not required for the first seven days of sickness, during which time employees can self-certify their sickness absence.
The Government has introduced a temporary alternative to the current fit note, meaning those in self-isolation will be able to obtain notification by email via NHS 111 as evidence – an Isolation Note.
Where this is related to having symptoms of Coronavirus or living with someone who has symptoms, the Isolation Note should be used to provide evidence of the advice to self-isolate. From Friday 20 March the Isolation Notes are available through the NHS website and NHS 111 online and will be sent to the employee per email.
Yes – the Government has classified some individuals as ‘vulnerable’ and others as ‘extremely vulnerable’. The latter category are those who require to ‘shield’. It is strongly advised that anyone in the ‘extremely vulnerable’ category should work from home. However, Government advice remains that working from home should apply to all individuals where this is reasonably possible.
Further information can be found at https://www.nhs.uk/conditions/coronavirus-covid-19/people-at-higher-risk/whos-at-higher-risk-from-coronavirus/
No. What your employees do outside of working hours is largely out of your control. You can encourage employees to consider whether, from their own health perspective, travel to those areas is the best thing to do and that, if they do decide to travel, they should take all necessary health precautions.
Employers should also discuss the likelihood of post-visit isolation and the impact of that on the individual and the wider working team.
Yes – if an employee satisfies the definition of being incapable of work in answer one above), they should be treated as being sick for the purposes of sick pay. Eligibility for sick pay does not take in to account whether an employee is abroad or not.
If a school has a confirmed case of COVID-19/ or if a child has symptoms, it would be advisable for the parent employee to self-isolate, and they would therefore be eligible for sick pay (except if they can work from home – in that case they would still be able to isolate but continue to undertake their duties and be paid normally).
Furthermore, the Government indicated an intention to also extend SSP to those caring for those within the same household who were exhibiting symptoms of COVID-19. However, this is not yet explicitly covered in the new emergency legislation. The carer would only be covered by the new rule on deemed incapacity if the public health guidance also required them to self-isolate. The employee can also be given the choice to take unpaid time off or their annual leave entitlement instead.
This issue has largely been overtaken by the Government’s announcement of the closure of schools for the foreseeable future, for which see above.
In the current circumstances, it is prudent to allow those employees who wish to work from home to do so.
Clearly, this only applies to employees whose role can actually be carried out remotely.
While an employer may refuse a request to work from home, special consideration should be given to whether:
- The employee is genuinely in the most vulnerable group, in which case
such a refusal may amount to a breach of trust and confidence; or
- The employee is disabled and working from home may amount to a Reasonable Adjustment.
Where an employee is willing and able to work, but their employer wants to send them home to self-quarantine, they should be sent home on full pay. However, if they fall in to a category for which the Government’s advice requires self-isolation, they would meet the eligibility criteria for sick pay and accordingly would be considered to be incapable of work and should receive sick pay.
Yes – lots. An employer is responsible for an employee’s welfare and health and safety. Employers must conduct a suitable and sufficient risk assessment of all the work activities carried out by their employees, including homeworkers, to identify hazards and assess the degree of risk.
Our Coronavirus Health and Safety Obligations Guide and Top Tips for Home Working will help employers navigate what for many businesses, is a brand new way of working. See also Health and Safety for further guidance.
This is a common fear for employers when dealing with requests to work from home. Normally, an employer faced with this issue would either end the home working and recall the employee to the workplace or look to address their concerns through use of a performance improvement procedure. Depending on the circumstances, it may not yet be possible to recall the employee to the workplace. Until it is safe to do so, managing and improving performance may be the most suitable approach.
While employers should be mindful of the extenuating circumstances of lockdown, where employees are working from home there will be an expectation that they are actually working. If the employer has taken all steps to ensure that the employee has the required tools to do their job, the employee should be performing as expected. Informal performance management can help to establish whether there are any specific reasons for a drop in performance and to put in place support to overcome these.
Employers should be mindful of the obligations on employees to work from home where this is reasonably possible. If an employee can carry out their role from home during lockdown they should do so. Otherwise, employers risk asking their employees to break the law by coming to work. The risk of this will lessen as the rules on lockdown are relaxed, but until then it is difficult to see how such an instruction could be reasonable.
In addition, employers have a responsibility to provide a safe working environment for their employees. If an employer forces employees to go into work, against government or medical advice and there is a genuine health and safety risk from being required to attend work, this could amount to a breach of the duty of care to those employees. This may also constitute a breach of the implied term of mutual trust and confidence, risking claims for constructive unfair dismissal and/or disability discrimination if any of those employees are considered to be ‘vulnerable persons’. In addition, if an employee contracts Covid-19 as a result of an employer requiring them to come into work, they could potentially have a personal injury claim against the employer.
These risks can be avoided where employers follow current guidance and allow employees to work from home where this is reasonably possible.
Amended legislation confirms that these individuals would qualify for Statutory Sick Pay if they are not already furloughed.
Access the guidance on this topic