COVID-19 employment law FAQs

These FAQs refer to the situation in England and Wales only.

All informtion contained in this document is correct at time of publication but all links to external government websites should be checked regularly as official advice is likely to be updated as the situation continues to develop.
1. What if an individual has been in contact with a person who has suspected Covid-19 or has symptoms of the virus?

In circumstances where an individual has come into contact with a suspected Covid-19 case and has symptoms, they should read in full the latest Government advice on self-isolation.

The advice in relation to family members is currently (20 March 2020) that where a person has symptoms of Covid-19, all other members of the household should self-isolate for 14 days.

It remains the case that employees are expected to carry out work to help provide services to the authority's service users and clients where they can.  As set out in FAQ2, where it is possible, the work should be carried out at home. In the event that an employee’s role cannot be performed from home and they are therefore unable to work because they are self-isolating then if they are on Green Book terms and conditions the National Joint Council for Local Government Services has issued a circular dated 12 February 2020 Novel Coronavirus: Covid-19 setting out advice about the Green Book sickness scheme. Part 2, paragraph 10.9 of that scheme provides:

“An employee who is prevented from attending work because of contact with infectious disease shall be entitled to receive normal pay. The period of absence on this account shall not be reckoned against the employee’s entitlements under this scheme.”

Therefore, the circular confirms that in the event that an employee is required to self-isolate or is placed in quarantine as a result of Covid-19, the provision above should be applied. Similar provisions apply for fire and rescue employees on Grey Book terms  and school staff on the Burgundy Book.

2. What if an individual is in a vulnerable group?

Government guidance provides that employees from defined vulnerable groups should be strongly advised and supported to stay at home and work from there if possible. This is due to the fact that they are at increased risk from severe illness caused by Covid-19. The NJC for local government services has issued a circular dated 17 March on Covid-19: working at home which addresses these issues for Green Book employees, although the same principles will apply for other employees, albeit the opportunities for employees in other services such as fire and rescue will in many cases be very limited. 

The circular advises that “all options for using annual leave, special leave etc should be explored but given the length of time that this national emergency is set to last it is not reasonable, for example, to expect employees to use their entire annual leave entitlement to cover all or part of the lockdown period as consideration should be given to planned booked holidays later in the year, along with employees who may require leave throughout the year to support dependents”.

“Ultimately, in many cases employers will have no option other than to accept that some employees can neither work at home nor be redeployed / seconded etc and will therefore be staying at home on full pay for the duration of this emergency. The LGA is and will continue to be in discussion with government regarding the support required for the sector.”

3. How do we respond to our employees who may have to undertake caring responsibilities at very short notice?

Following the announcement that schools will now be closed for the foreseeable future there will be many staff who will have to be at home to look after their children, although critical workers will still be able to send their children to school if they have no other options available for childcare. The availability of employees who have to be at home to look after their children will depend on their individual circumstances e.g. the working arrangements of their partner, the availability of other people who may be available or willing to help with childcare at certain times. However, given the Government advice regarding social contact and the risk to older people, usual options for some, such as grandparents, will not be available, so options will be limited where both parents work. Some of these employees will be able to do some work from home, again depending on the age of the children and the kind of work and the time that that work has to be carried out. In the current circumstances, employers will want to support their employees in terms of both being flexible in the way that people work but also in terms of the expectations that are placed on people at this very difficult time. It is inevitable that there will be a drop in productivity in some cases, but employers and employees will hopefully be able to come to some arrangement which will allow some functions to be carried out where reasonably possible, such as by allowing someone to work different hours e.g. in the evening. It may also be possible to allocate alternative duties to some home bound employees which would free up other staff to do work which requires a physical presence, or to alter shift arrangements which may allow employees to work at times when there are others who are able to care for their children.

For others who cannot work at home, but have to be at home to look after their children  authorities will want to explore all leave options, including extending any carers’ leave, but once those are exhausted the authority will need to consider whether the continuing time off should be on full pay bearing in mind other employees who are at home but not working may continue to receive full pay. 

4. How do we manage any resulting sickness absence?

Except for the situation referred to below for employees on Burgundy Book terms and conditions, where an employee is too sick to work as a result of Covid-19, whether at home or in their place of work, then their absence should be treated as sickness absence. In the circumstances, the Government “strongly suggests” that employers use their discretion around the need for medical evidence. This is obviously due to the difficulties that employees may face in being able to obtain a sick note and the fact that health services will be dealing with higher priorities. However, the Government has now set up a digital method for obtaining evidence of sickness absence or the need to self-isolate.

In the circumstances, and to help prevent employees from not reporting as sick when they are, many employers may also choose not to take such absence into account for sickness absence management procedures. Further, if an employee’s sick pay entitlement has expired or reduced to half pay, or is about to do so, then authorities are reminded that they have always had the discretion to extend sick pay entitlements in order not to impose financial hardship on employees. 

For Burgundy Book employees who have contracted Covid-19 directly in the course of their employment Section 4, Paragraph 10.1 provides:
“10.1 When the approved medical practitioner attests that there is evidence to show a reasonable probability that an absence was due to an infectious or contagious illness contracted directly in the course of the teacher’s employment full pay shall be allowed for such period of absence as may be authorised by the approved medical practitioner as being due to the illness, and such absence shall not be reckoned against the teacher’s entitlement to sick leave under paragraph 2 above, though such absences are reckonable for entitlement to Statutory Sick Pay.”

If, however, the Burgundy Book employee did not contract Covid-19 in the course of their employment then they should be treated as any other employee.

5. How do we manage staff where we have had to close the service for organisational reasons or due to steps the Government have put in place?

Many services will continue to run, but possibly to a more limited extent, where workers are able to operate from home. However, some services may have to be significantly reduced or shut down on a temporary basis, for example as is the case with some schools, in response to managing the virus. Where workers are not required to provide the service they are normally employed to do, consideration should be given to whether or not it would be appropriate to redeploy them to those essential services where there may be a need for additional staff, particularly if there is an increase in staff absence. Such redeployment would normally require some form of training including any necessary health and safety information and Personal Protective Equipment if required for the temporary role. If redeployment is envisaged it would be prudent to put as much of this in place as soon as possible and before the need to redeploy arises. (See FAQ 11 for further info on redeployment.)

If it is not currently necessary to redeploy staff, or would not be possible, then employees may be required to stay at home, for which they would continue to receive contractual pay. They should remain available for work and may be called to work at short notice. Any requests for leave should be managed through appropriate channels. Ultimately though should the question of redundancies arise then authorities could consider whether the Government’s Coronavirus Job Retention Scheme could apply to prevent such dismissals. However, Government guidance makes it clear that it does not expect many public sector employers to use the scheme and that while public bodies are continuing to receive funding for staff costs, it expects them to use that money to continue to pay its staff (see FAQ 7 for further details). Therefore while funding remains in place the expectation is that public sector employees should not be made redundant due to the impact of the Covid-19 pandemic or be placed on the Coronavirus Job Retention Scheme.

6. In the event of the closure of a place of work, such as a school, does an agency worker remain entitled to be paid if other directly employed employees continue to be paid even if they are not working at home?

Whether an agency worker will remain entitled to be paid through their agency will depend first on whether they are entitled to be paid under the Agency Worker Regulations 2010. Broadly speaking those Regulations give agency workers the right to equal treatment in terms of "basic working and employment conditions", as if they had been employed directly by the hirer to do the same job. In many cases this means that agency workers will be entitled to the same rate of pay as a comparable employee, so if a comparable employee is being paid during the workplace closure period, then the agency worker may be entitled to be paid. However, that right only applies after a 12-week qualifying period. To determine entitlement under the Regulations therefore authorities will need to check whether the worker has met that 12-week qualifying period; for details of how that is calculated see number 9 of the LGA’s Agency Workers FAQs.

Importantly though, any entitlement under the Regulations will apply only for the length of the assignment. For example, if a worker was brought in to cover absence for a week, then they would remain entitled only to be paid until the end of that week. To determine the length of the assignment the first step will be to check the agreement between the agency and the authority to see whether that sets out its length. In some cases though the length of the assignment may be more difficult to determine, for example if they were covering sick leave on an open ended basis. In such cases employers may want to make an assessment of how long the assignment might reasonably be expected to have lasted.

Ultimately though in terms of liability under the Regulations for any non-payment, responsibility for providing rights under the Regulations is primarily with the employment agency. However, if the reason the agency worker was not being paid was because the authority unreasonably stopped paying the agency then if a claim was brought by an agency worker then an employment tribunal might well find that the authority was responsible for the breach and so it should be liable for the non-payment or an element of it.

If the worker does not have any entitlement to pay under the Regulations, authorities should still check whether there is any contractual obligation with the agency and/or worker which would require them to continue paying for the worker. 

In some cases though it may be that the employment agency will be able to consider using the Government’s Coronavirus Job Retention Scheme, under which 80% of the agency worker’s pay would be funded by that scheme, and in such cases authorities might want to discuss top up pay with the agency so the worker does not receive a drop in pay. Further details of the Coronavirus Job Retention Scheme are in FAQ 7).

7. What is the Coronavirus Job Retention Scheme?

The Government has announced that employers, which, due to the effect of the virus, would need to make their employees redundant, can instead designate then as furloughed under its Coronavirus Job Retention Scheme (subject to the terms of their contract or agreement with the employee). This will allow them to apply to HMRC for the reimbursement of 80 per cent of their wages, plus the associated Employer National Insurance contributions and minimum automatic enrolment employer pension contributions, subject to a limit of £2,500 per month. This could allow the employer to top up the remaining 20 per cent of pay.

However, Government guidance on the scheme makes it clear that while the scheme is available to public sector employers, the Government does not expect the scheme to be used by many of them, as they will be continuing to provide essential public services. The guidance also states that where employers receive public funding for staff costs, and that funding is continuing, it expects employers to use that money to continue to pay staff in the usual fashion. This also applies to non-public sector employers who receive public funding for staff costs. Therefore in such cases there is an expectation that employees should not be made redundant as a consequence of the impact of Covid-19 pandemic or placed on furlough leave.

In some cases though it may be helpful for authorities to advise any of their partner organisations of the details of this scheme to help to protect the wider local government workforce.

In all cases though where questions about the scheme arise we recommend that authorities read the Government’s guidance on  the scheme. That guidance sets out which employers can claim, the employees which can be claimed for, how much can be claimed and how to make a claim.

8. What responsibilities do employees have to their employers in the current circumstances?

Authorities should provide whatever reasonable support they can to employees to enable them to continue to provide services but, to minimise the risk of infection and absence, employees have a responsibility to:

  • work from home if possible in line with the organisation’s requirements. If their role means that they are unable to work from home, attend work if well, unless instructed to do otherwise by the employer in line with Government policy, which is constantly being updated. Be open and honest if they feel that they are unwell with Covid-19
  • be flexible in assisting in the delivery of the authority's services
  • follow general infection control practices and good hand hygiene which can help to reduce transmission of all viruses.
  • follow all national guidelines issued at the time on reporting Covid-19 symptoms, treatment, use of public transport, self-isolating etc
  • keep their department informed about any new or continuing sickness absence and the reason for it, in line with the published reporting procedure, and keep any absence to a safe minimum in line with Government guidance to make it easier to maintain services
  • keep their manager up to date with contact details for themselves and next of kin, and help the authority to help them and maintain services by sharing information on any travel arrangements and caring responsibilities
  • keep themselves abreast of information issued by their employers on how it intends to handle the Covid-19 situation.
9. What if the employee refuses to attend work or perform their duties?

It is anticipated that employees will, as far as possible within the constraints of school closures, caring responsibilities and complying with Government advice on self-isolating and social distancing, continue to perform their duties and be flexible to ensure that services continue to be provided. Personal protective equipment advice should be followed both in relation to Covid-19 and any other risks applying to the roles that employees are asked to perform. If difficulties arise with a refusal to attend work or a refusal to carry out certain duties, managers should ascertain what the concerns are, consider what, if anything, can be reasonably done to address those concerns and take action accordingly, to encourage the individual to work.

If this has been done, but the individual still refuses to attend or perform the task then this may constitute unauthorised absence or partial performance (ie where they are only prepared to carry out certain tasks rather than their full range of duties). This may be a disciplinary issue, which may justify withdrawal of pay. The manager should explain the individual’s contractual obligations and the consequences of refusing to work. If there is still no change in the individual’s position, immediate advice should be sought from HR to ensure an appropriate and consistent approach can be taken. 

10. What about planned absences, such as annual leave?

Planned absences such as annual leave, special leave, flexitime leave, or leave for public duties, (or even compassionate and parental leave in very critical instances) may need to be cancelled or rearranged to ensure sufficient cover can be maintained. Cancellation will have to be in line with any national advice or guidance and based on the need to maintain necessary services (see the NJC circular 6 March 2020). Leave requests should also be prioritised, e.g. special leave requests for bereavement situations and public duties which must be provided by law, will clearly take precedence over non-critical flexitime or annual leave requests.

As it is necessary to balance the need for work and rest during a prolonged period, leave may not automatically be cancelled and new requests may be considered, but can be cancelled and turned down respectively, where it is considered operationally necessary, and alternative dates will have to be agreed once the situation returns to normal. This may mean that authorities will need to give retrospective consideration to allowing more leave than normal to be carried forward into the next leave year. In accordance with legal requirements, individuals should take a minimum of 28 days’ leave (including public holidays) per leave year - pro rated as appropriate. 

11. Can we redeploy individuals?

Covid-19 means a change to local authority service demands and employee attendance levels. Therefore, managers will need to identify any critical areas that are likely to have a shortage of employees as the situation develops in line with the Business Continuity Plan.

Employees are expected to be flexible to ensure that services can be maintained, and early discussions with local trade union representatives about how best to redeploy individuals will help maintain that flexibility. The general principle is that the authority should make the best use of resources to support its communities and that resources should be prioritised towards critical services. Where necessary, employees who are suitably trained or skilled to carry out tasks can be asked temporarily to provide cover if the number of employees available for work who normally provide the service becomes too low. This might apply across sections/departments as well, particularly for those employees who are not able to work in their own area if the service is suspended. In these exceptional circumstances the underlying principle is that if someone has an acceptable level of training or skills and knowledge to carry out the basic task, it should in many cases be reasonable to expect them to do it, although it will very much depend on the individual’s circumstances, such as whether they have any underlying condition which might require adjustments in order to perform the new role. The aim is to get the most out of the employees who are fit to work, which will mean employers obtaining flexibility from employees and key considerations in achieving that are:

  • if you need to change an employee's role or job location, the first thing to do is to check the contract to see if it contains a flexibility and/or mobility clause allowing you to make the changes
  • even if it does not have a flexibility and/or mobility clause, if in practice employees routinely change roles or place or work, there may be an implied term that you can change the employees' roles and working location 
  • the authority should also make sure that the employee is sufficiently trained to carry out any new tasks/role and that the necessary risk assessments are in place. HSE has also issued guidance on risk assessments relating to working from home due to Covid-19.

However, the best way of obtaining flexibility is to get employees' agreement to changes and, therefore, the focus should be on reaching agreements on a framework and protocols on staffing issues with local staff-side organisations. In all cases though, no employee should be pressurised to undertake other duties that they are unfamiliar with and that they do not have the basic skills or knowledge to complete the tasks required.

12. What about bringing in agency workers to cover absences?

It may be possible to use agency workers to cover some absence, although contingency planners/managers must bear in mind that their availability will also be affected in the same way as the authority's employees, and so should work with agencies as early as possible. Any temporary or agency workers brought in should continue to have the appropriate employment checks, for example those with the Disclosure and Barring Service, carried out before they are employed. Please bear in mind the timescales for completing these checks when planning to use this option and explore any options for accelerating those. All agency employees, including those not required as a result of the closure of services, will need to be managed via the agency.

13. What if we need people to work additional hours?

Where an increase in absence levels would lead to problematic staff shortages in essential services, line managers should ask for volunteers from existing employees to increase their hours, subject to consideration of health and safety issues. Care should be taken to ensure that those working additional hours do not put their own or others’ health and safety at risk and that they get regular rest breaks. Appropriate pay arrangements should be agreed in advance, unless there is already something applicable in the contract. This may be time off in lieu at a later date, or paid overtime or shift allowance.

14. How can we best support employees?

Employers are under a legal duty to maintain health and safety; this continues to be the case during an emergency situation. Employees are likely to be concerned about the risk of contracting the virus. The employer must take all reasonable steps to protect employees’ health and safety, provide clear and accessible communications about the likely risks and take a supportive view of those who have caring responsibilities. Employers can also provide opportunities for employees to discuss their concerns with their line manager or an occupational health or counselling service.

15. Do we need to put in place special communication measures?

It is important that workers are kept as up-to-date as possible with current Government advice regarding self-isolation and preventing the spread of infection and the steps that the employer is putting in place as a result. There will currently be a significant number of workers working at home and others who are working remotely in essential services and therefore the employer should ensure that there are adequate communications channels (for example via text or email) in place to ensure information reaches these people as soon as possible. Workers should be informed about how the employer will communicate important messages to ensure that they monitor these communications channels as appropriate. Employers should also consider how they communicate any relevant information with those who are currently not at work e.g. women on maternity leave.