The COVID-19 pandemic is poised to create significant issues for employers that will be difficult to traverse. Major questions are raised regarding how time off taken by self-isolating employees should be managed, as well as obligations of the employer under the Health and Safety at Work Act 2015 – getting it wrong creates a significant risk of an employer breaching the Act, or unjustifiably disadvantaging an employee, giving rise to the risk of a personal grievance claim. How will prudent employers respond?
As the disease spreads over the coming months, more and more employees will need to take time off work, either directly due to sickness or to self isolate. The legal position on sick leave is relatively unambiguous, but with self-isolation and social distancing becoming more common, the obligations of the employer in this regard are far less clear. How leave for self isolating employees should be treated is a challenging question employers will need to face. Employers are not required to pay self-isolating employees in all circumstances, although there are circumstances where a failure to pay could unjustifiably disadvantage an employee and open the door to a personal grievance claim. There are numerous pitfalls that could easily trap employers (for example, the treatment of annual leave) and getting it wrong could prove costly.
Employers also face exposure to breaching the Health and Safety at Work Act if they do not take the appropriate action in relation to sick employees. If the employer knows or suspects an employee is infected with COVID-19 and fails to take appropriate action, this will likely be a breach of the Act. The employer potentially faces penalties under the Act, or legal action from employees placed at risk. Some affected employees may insist on coming to work despite their illness for a myriad of reasons, including financial pressure. However, simply sending the employee home or suspending them, will be unlawful if implemented incorrectly. – employers unfamiliar with the procedural requirements of a lawful suspension will be at risk.
The pandemic we are facing creates a minefield of new issues for employers they will not have encountered before. The stakes are high, with both awards in the Employment Relations Authority and penalties under the Health and Safety at Work Act, trending higher than we have previously seen. Prudent employers will respond by doing their research and seeking advice early, rather than waiting for the problems to arise before taking any action. An ounce of vaccine is worth a pound of cure, and employers vaccinating themselves through preparation and advice will save the cost of curing the problems that arise for unprepared employers throughout the time the COVID-19 pandemic has left to run.