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19 March 2020
Sick pay and procedures
Employees who are unable to work
Asking the right questions
Existing medical conditions
Although there is a host of good coronavirus (COVID-19) advice available on hygiene practices and travelling to affected areas, there are some issues which employers might not have considered. This article examines key considerations for employers in the Channel Islands with regard to the COVID-19 pandemic.
If an employee has COVID-19, their employer's usual sick leave and pay entitlement will apply. If an employee has been medically advised to self-isolate, their employer is not required to provide sick leave or pay, but it would be good practice; otherwise, the employee may come to work. Employers should consider temporarily varying their contracts, policies and handbook to allow flexibility in the timescales for providing a medical certificate if an employee has been medically advised to self-isolate for 14 days. Variation can be done informally (eg, by email).
Personal data concerning health is classified as 'special category data'. If an employee has COVID-19, their employer can let other employees know that there has been a confirmed case within the business but must not include any details about the individual who is absent without their express consent.
Employers should offer flexible or remote working if they can or consider allowing employees to request paid holidays or unpaid leave. Employers should review their policy on time off for emergencies, as employees may request unpaid time off to look after a child or dependant who is sick or in isolation or if a child's school has closed.
Employers should consider inviting employees to advise them not only if they develop symptoms or have travelled (or plan to travel) to affected areas, but also if they have had contact with anyone (eg, a family member) who has symptoms or has travelled to an affected area.
Employers should identify staff who may be particularly at risk if there is a local outbreak (eg, employees who are pregnant or have impaired immunity). Employees must voluntarily consent to providing this information and data protection principles will apply.
With increasing numbers of employees likely to be working remotely, employers should remind employees of their internet security, confidentiality and data protection policies when they are working outside the office.
With potentially increasing numbers of employees becoming sick or needing to self-isolate, employers should review their contracts, policies and handbook on normal working hours, shift work, overtime and rotas.
Employers should plan for the medium and long term. This should include a review of their operational plans and any contracts to ensure that critical business activities can continue (eg, whether their systems and employees could operate flexibly if there are travel or other business restrictions).
If an employer suffers a downturn in work or their business is required to close, staff could be laid off temporarily without pay, but only if the employer has an express contractual right to do so.
As a matter of national and international concern, COVID-19 has reportedly given rise to increased racism and prejudice towards certain nationalities. Employers should ensure that their employees are aware of their policy on discrimination and harassment, in relation to both colleagues and customers. Employers will be liable for the actions of their employees unless they have taken reasonable steps to prevent the conduct.
For further information on this topic please contact Helen Ruelle, Rachel Richardson, Will Austin-Vautier or Kate Morel at Ogier by telephone (+44 1481 721 672) or email (firstname.lastname@example.org, email@example.com, firstname.lastname@example.org or email@example.com). The Ogier website can be accessed at www.ogier.com.
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